Posted on April 28, 2010 in Alternative Dispute Resolution
Consider Pre-suit Mediation
Mediation is now engrained in the personal injury tort litigation process and supports an 80% settlement success rate. Almost all litigated tort cases are mediated now but the mediation is not usually scheduled until after the completion of discovery and months of costly litigation fees. Pre-suit mediation is a way to reasonably resolve cases while controlling cycle time and legal expenses.
The Indiana Rules of Court provide an enforceable structure for pre-suit mediation that preserves the same safeguards established under the ADR Rule 2 for mediation during litigation. ADR Rule 8 provides that those agreeing to mediate disputes not in litigation can proceed under this rule. The requirements are highlighted as follows:
? May participate with or without counsel.
? May choose the mediator and agree on a method of compensation. The fee is shared equally unless agreed otherwise. Conduct of the mediator is governed by standards of conduct per ADR Rule 7.
? Must sign a written agreement to mediate providing for 1) confidentiality, 2) immunity of the mediator, and 3) a signed written settlement agreement.
? Encouraged to submit written summaries.
? Must negotiate in good faith.
? Can proceed with other ADR or litigation if no settlement reached.
? Statute of limitation, notice requirements, etc. do not change.
While pre-suit mediation is appropriate for many types of cases, it is particularly suited for those cases where the facts and law are fairly well known and the values are relatively low. These are cases in which the cost/ benefit ratio of litigation is low for both plaintiff and the insurance company. Mediation can also be used in conjunction with settlement day activities and multiple cases with one attorney provided there is adequate planning and scheduling.
The obvious advantages to pre-suit mediation are reduced cycle time of the case and reduced legal expenses. These are important factors for both plaintiff and the insurance company and are the basis for cooperative negotiations and compromise. Other less tangible factors like client/ insured satisfaction, which might include the confidentiality of the mediation proceeding or a reduced time and resource commitment to the litigation, make pre-suit mediation attractive. The goal for both sides must be the desire to reach a reasonable settlement expeditiously and economically.
If you are losing cases to litigation that are otherwise in a position to settle, consider pre-suit mediation as part of your claim handling strategy. Contact Donald D. Douglass, Jr., a registered mediator, providing civil mediation services for personal injury and insurance related matters, with over 30 years experience as a litigation attorney and managing attorney.
Law Office of Donald D. Douglass, Jr.,