Resolution Before Trial: Settlement
The majority of legal claims arising from accidents or injuries do not reach a civil court trial -- most are resolved earlier through a negotiated settlement among the parties. An informal settlement can even take place before any lawsuit is filed. Through settlement, the plaintiff in a personal injury case agrees to give up the right to pursue any further legal action in connection with the accident or injury, in exchange for the payment of an agreed-upon sum of money from the defendant or an insurance company. In rare cases, instead of paying money the defendant will agree to perform (or cease performing) a certain action.
If you are considering settling a legal claim after an accident or injury, or if you have received a settlement offer, you should talk to your attorney and receive his or her thorough assessment of the case and the prospects for settlement. Consider the following points:
 Amount he or she thinks the case is worth in a range of dollar amounts.
Verdicts and settlements in similar cases.
Chances of winning at trial.
Unfavorable publicity for either side (civil court trials are open to the public and media scrutiny).
Amount of personal information that could be revealed at trial or through further discovery.
Possible disclosure of business information or trade secrets.
When the case is likely to be called for trial.
Practical difficulties in trying the case.
Weaknesses in your evidence.
Weaknesses in your opponent's evidence.
The amount of the defendant's insurance coverage.
The defendant's own monetary resources.
The defendant's lawyer's negotiation tactics (your lawyer may have negotiated with the lawyer before, or has talked to other
lawyers to get an idea of what to expect).
The extent to which your opponent is likely to play "hardball."
If you are the plaintiff, ask how much of the settlement
proceeds will be applied to your lawyer's fee and your expenses.
If you are the plaintiff, ask how the settlement payments will affect your federal and state income taxes.
• Talk about what you're willing to concede in order to get the case settled.
• Discuss the minimum amount you will accept.
• Consider the possibility of a partial settlement, that is, settling the easy issues first while you continue to negotiate the more
contentious issues.
• If you are the plaintiff, consider accepting a remedy other than money.
Using Mediation and Arbitration to Resolve Legal Disputes
Civil court lawsuits and trials are the traditional method for resolving accident and injury disputes. However, concerns about court congestion and delays, rising litigation costs, and the negative psychological and emotional impact of litigation have increased the use of alternative dispute resolution (ADR) techniques. Two frequently used ADR processes are mediation and arbitration. Mediation is essentially negotiation facilitated by a neutral third party. Arbitration is a binding resolution process similar to trial, but with fewer technical rules and requirements. ADR procedures can be initiated by the parties or may be compelled by legislation, the courts, or contractual terms. Each method of dispute resolution has benefits and drawbacks. It is, therefore, important for an individual considering the use of ADR to understand the different processes in the context of their specific needs and goals.
Mediation
When parties are unwilling or unable to resolve a dispute, they often turn to mediation. Mediation is generally short-term, structured, task-oriented, and a "hands-on" process. In mediation, the disputing parties work with a neutral third party, the mediator, to resolve their disputes. The mediator facilitates the resolution of the parties' disputes by supervising the exchange of information and the bargaining process. The mediator helps the parties find common ground and deal with unrealistic expectations. He or she may also offer creative solutions and assist in drafting a final settlement. The role of the mediator is to interpret concerns, relay information between the parties, frame issues, and define the problems.
Mediation is usually a voluntary process, although in some cases statutes, rules, or court orders may require participation in mediation. Mediation is common in small claims courts, housing courts, family courts, and some criminal court programs and neighborhood justice centers. Unlike the litigation process, where a neutral third party (usually a judge) imposes a decision over the matter, the parties and their mediator ordinarily control the mediation process -- deciding when and where the mediation takes place, who will be present, how the mediation will be paid for, and how the mediator will interact with the parties.
If a resolution is reached, mediation agreements may be oral or written, and content varies with the type of mediation. Whether a mediation agreement is binding depends on the law in the individual jurisdictions, but most mediation agreements are considered enforceable contracts. In some court-ordered mediations, the agreement becomes a court judgment. If an agreement is not reached, however, the parties may decide to pursue their claims in other forums.
The mediation process is generally considered more prompt, inexpensive, and procedurally simple than formal litigation. It allows the parties to focus on the underlying circumstances that contributed to the dispute, rather than on narrow legal issues. The mediation process does not focus on truth or fault. Questions of which party is right or wrong are generally less important than the issue of how the problem can be resolved. Disputing parties who are seeking vindication of their rights or a determination of fault will not likely be satisfied with the mediation process.
Arbitration
Arbitration is the most formal alternative to litigation. In this process, the disputing parties present their case to a neutral third party, who renders a decision. Arbitration is widely used to resolve disputes in both the private and public sector. Arbitration is generally considered a more efficient process than litigation because it is quicker, less expensive, and provides greater flexibility of process and procedure. The parties often select the arbitrator and exercise control over certain aspects of the arbitration procedure. Arbitrators typically have more expertise in the specific subject matter of the dispute than do judges. They may also have greater flexibility in decision-making.
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