Ways to Reach a Settlement
Alternative Dispute Resolution, Direct Negotiations , Mediations , Arbitration , Closing Your Case & Receiving Your Settlement , Increasing Your Settlement
Alternative Dispute Resolution
Negotiating directly with the defendant and his or her lawyer is just one way you can reach a settlement. You can also use methods that are collectively called "alternative dispute resolution," which are more formal. They include mediation and arbitration, both of which are a little like informal trials led by someone specifically trained in resolving disputes. In some states, courts may order the parties to try an alternative dispute resolution method, or you may be obligated by a contract to try it. You can also choose this on your own.
The most direct way to reach a settlement is simply to negotiate with the insurance adjuster, or the defendant and the defendant's lawyer. Doing this requires substantial knowledge in two areas: The prospects of your case if you go to trial and the value of your claim. This is where having a lawyer can benefit you greatly.
Experienced Idaho personal injury attorneys have handled hundreds or even thousands of cases like yours, so they understand how your case is likely to come out at trial.
Experienced Idaho personal injury attorneys should also be familiar with the courts and juries in your area. For the same reasons, they understand how to calculate the full value of your claim. And of course, a lawyer is an experienced negotiator. This levels the playing field against the insurance adjuster or defense lawyer, who will work to minimize your payments to save money for the insurance company.
Once you retain a law firm, it will handle all contact and negotiations with the insurance company and the defendant.
Legally, the insurance company can no longer contact you directly, so the law firm will take care of it for you.
Under most circumstances, you do not need to be present for direct settlement negotiations, although your attorney will keep you informed throughout. Using the information you provided about your case and the information obtained during discovery, your attorney will build the strongest possible case for settlement and present it to the other side. If they make an offer, your attorney will present it to you for a decision, along with his or her advice. As we said before, though, the decision is 100% yours to make.
Mediation is a type of settlement negotiation in which an impartial third party helps both sides come to an agreement, using his/her training in dispute resolution methods and legal experience. Mediation is usually conducted through an in-person discussion with all parties, including you, the insurance company and/or the defendant, as well as the attorneys for all parties.
Generally speaking, a mediator is a retired judge, a lawyer or other neutral person who has also been trained to mediate disputes. Frequently, he or she has a special certification from the courts or the bar association of your state. However, unlike a judge, a mediator must be paid. Usually, you and the defendant will split this cost evenly. Mediation can be chosen or ordered by the court at any time during your case, although it is more likely after discovery has been conducted.
At a mediation conference, both sides will sit down and present their cases to the mediator informally. There is no jury. The mediator will then discuss each party's claims, either in the same room or in private conferences, if necessary. In these conferences, the mediator might ask questions and raise issues to help the parties find a compromise that they can agree to. Because the mediator is experienced in the law affecting your case, he or she should take into account your legal rights, the extent of your injuries and the prospects of your case in a trial.
After the initial mediation conference, you may have a follow-up conference or discuss the matter by telephone. It is important to realize that coming to an agreement in this way can be slow. If you reach an agreement at mediation, it is not binding unless you and the defendant sign papers and take other steps to formalize it. If you do not come to an agreement, you are free to try again or continue toward trial.
In mediation, you are in a way previewing your case for the other side, just as they are previewing theirs for you. That means it is important to be careful about what you say and to present yourself in a professional manner, just as you would if you were going to trial. A good rule of thumb is to behave as if the room is full of a diverse group of people from your area, some of whom may not be sympathetic to you. Your lawyer will prepare you for mediation, just as he or she would for trial and depositions. And if you cannot attend a mediation conference, you should let your lawyer know as soon as you can, because not showing up might result in penalties or even the dismissal of your case.
Many insurance companies have come to like mediation because it gets all the parties, all the lawyers and the insurance carrier focused on that case for that day.
Arbitration is another form of alternative dispute resolution. Like mediation, it brings the parties together before an impartial third party who understands the applicable law and will keep order during discussions. And like mediators, arbitrators are often retired judges or lawyers with experience in the legal area affecting your case, with a fee that will usually be split evenly between the parties. But unlike a mediator, an arbitrator does not actively guide the conversation or give opinions. Arbitrators are more like judges who keep order and rule on questions about the law, and eventually, on which party should prevail. In non-binding arbitration, the resulting judgment is only a suggestion; in binding arbitration, the decision is usually final.
At a non-binding arbitration, both parties present their cases as they would in mediation. But instead of holding the conference that a mediator would hold, an arbitrator simply decides which side should prevail and how much the plaintiff might be entitled to in damages. The idea is to show the parties how an impartial person sees their case, which encourages them to settle. The arbitrator's decision is non-binding, so if you do not agree, you are free to continue to trial. However, in some jurisdictions, you may be penalized for this if the court ordered the arbitration, or if you go to trial and do not do as well. Your lawyer should be able to tell you about the rules that apply to your case.
Binding arbitration is just like non-binding arbitration, except that both parties agree beforehand to abide by the arbitrator's judgment. You and your lawyer can choose binding arbitration, or you may be contractually obligated to use it. Binding arbitration can be advantageous for parties who want to resolve their cases more quickly, and sometimes more cheaply, than they might be able to in court. However, because it is hard to challenge the judgment produced by binding arbitration, it is important to understand before the arbitration that you usually must follow the decision of the arbitrator. In fact, you may be penalized for ignoring or defying that decision. Your lawyer can give you a professional opinion on whether binding arbitration is a good idea in your case.
Closing Your Case & Receiving Your Settlement
Reaching a settlement can provide some satisfaction in knowing that your legal claim is finally going to be behind you. But you must still complete the closing process, which is an important part of finalizing your case and can take time.
Usually, you will be asked to sign a form called a release that formally concludes all current and future claims against the at-fault party and/or insurance company for these injuries. Because signing this ends your right to collect any more compensation for your injuries from this defendant, you should understand this completely and raise any objections before you sign it. Do not hesitate to bring up questions or concerns with your lawyer. After it is signed, both sides will notify the court that the case has been resolved and ask to dismiss any lawsuit.
As part of the closing process, your lawyer may have to address outstanding bills, claims or liens on your settlement proceeds, as discussed in the section entitled "Understanding a Settlement Offer." This may mean that you have to pay some of your settlement to a third party, or that part of your settlement payment may be held by your lawyer while questions about payment are resolved.
Settlement proceeds are sent directly to your law firm. Injury law firms have bank accounts called trust accounts, where they hold money belonging to clients until their cases are finalized. (This is a lot like holding money in escrow for people who are buying or selling a home.) Ethics rules forbid lawyers from using this money for their own purposes. Your settlement check will go into this account at first.
The net settlement proceeds will be released to you after you have seen or signed a form called a closing or settlement statement, which typically ends your case and your client relationship with the law firm. It also lists all of the disbursements of the settlement funds, which includes payment of legal fees and costs, outstanding medical expenses, liens and any other debts to be paid out of the settlement, as well as your own payment. Again, you should not hesitate to bring up any questions or concerns about this document. If you have special circumstances or a particularly complicated case, your lawyer may bring up other ways your settlement proceeds might be disbursed, or have suggestions designed to serve your best financial and legal interests.
Your Idaho personal injury attorney cannot write you a settlement check until this paperwork is done.
In a number of states, though not Idaho, clients have a legally required waiting period that has to pass. If you are concerned about receiving the money quickly, it is important to take care of the paperwork as soon as possible.
Increasing Your Settlement
Hiring an experienced Idaho personal injury attorney may substantially increase your recovery, even if there is limited money available from insurance policies and you have high medical bills.
This is one example of how an attorney's negotiations made a difference for one client who was injured in a motorcycle accident. Of course, the facts of each case are unique, so the results may not look much like the results in your case. But we hope we can show you how valuable it can be to get help from an experienced Idaho personal injury attorney when dealing with insurance claims.
The client in this case, a woman in her twenties, was riding on the back of her boyfriend's motorcycle when a tire fell off the back of a tow truck and struck the motorcycle. She was seriously injured in the resulting accident, with medical bills reaching a total of $140,000. The tow truck's insurance company offered her $100,000, which it claimed was the total amount available under the insurance policy covering the tow truck. That is, that was what they claimed before she retained a personal injury lawyer. Before calling a lawyer, she had worked out an agreement with her medical providers, in which they would receive the entire $100,000 available under the insurance policy, and she would make payments for the remaining amounts due over time.
This victim called an Idaho personal injury attorney who had many years of experience with accident cases, to ask if he had any advice about dealing with outstanding medical bills. The lawyer asked her if she had confirmed that the $100,000 was the only amount available under the tow truck company's insurance policy, or if she had confirmed that this was the only insurance policy that could cover the accident. The lawyer also asked whether any of her medical bills had been paid through a group health insurance policy, if she had reviewed that policy to determine whether one insurer might have to compensate another, and if any agreement was made by the tow truck's insurer with medical providers for paying off the medical bills.
After speaking with the lawyer, the woman realized that there was more to the case, and that she needed help to get the best compensation she could. With help from the lawyer, she was able to reach a settlement with the tow truck company's insurer. Ultimately, the settlement she received in the case paid all of her medical bills and her lawyer's fees, and provided substantial compensation to her for pain, suffering and inconvenience. Had she not sought the help of a qualified personal injury attorney, this nice woman would have received only a fraction of the recovery she ultimately won.