Though cases do go to trial, most cases are settled between parties prior to trial.  After someone is injured due to the negligence of another, that starts a process toward an eventual resolution between the parties.  In most cases, the injured party will retain a lawyer who will put together the evidence of wrongdoing and evidence of damages, and send a demand for settlement to the other side.  Parties will then go back and forth over settlement numbers to attempt to reach a settlement. Mediation could come at this point, as a “pre-suit” mediation, but normally it happens after filing a lawsuit. This is the formal median to prepare to win.

        The Plaintiff, through his attorney, will normally file a lawsuit against the Defendant (and usually it’s through the Defendant’s insurance company) if the Defendant and/or his insurance company does not offer enough to satisfy what the Plaintiff perceives as his damages. The Plaintiff will file a Complaint, which will be served on the Defendant.  The Defendant will normally give it to his insurance company, and the company will assign an attorney to defend and answer the complaint.  After answering the complaint, parties will engage in discovery of information from each other, and this will include depositions of the parties and witnesses.  At any point along the way, either party could reach out with an offer to settle, but normally the suit does not settle until after discovery when the parties know all the evidence.

        Mediation is mandatory in most circuit courts in South Carolina prior to trial of the case, so most will engage in mediation.  The mediator is paid by both the parties, and is normally an attorney or former judge experienced in the type of case.  The parties will normally provide a mediation packet to the mediator prior to mediation, and will usually come to mediation with their first offers to settle.  What’s critically important is for parties and attorneys to plan the strategy of mediation.  They must go in with the “walkaway” amount that is the limit to what they will accept from the other side.  Most know from human nature if a side is desperate to settle, and willing to go as far as can be pushed.  Another important part of planning is identifying all potential quid pro quos (this for that) between parties. Usually, there are other exchanges of value beyond the strict dollar amount to settle.  Sometimes, it may be something as simple as an apology.  It may be a confidentiality agreement if parties settle.  Each case is different, but the reason for identifying potential exchanges is that it helps alleviate coming to an impasse with just the dollar figure of settlement.

       It’s important to “keep position” in a mediation.  The first offer should be to the high end of what is desired.  In almost all mediations, the starting offers are just that: A start.  A high-end position allows room before coming to the walkaway number.  It’s important to have the justification for demands, through good knowledge of both liability and damages.  Arguments are made between parties to convince them of what would likely happen at trial.  Most of the discussion will be about the legal and financial aspects of the case.  However, arguments can be made about other reasons for settlement, like the history of jury verdicts in the venue and other such considerations. During the mediation, it’s important to be patient and also flexible about reading the other side.  It’s important to understand the actual decision maker, which may not be the Defendant or attorney, but an insurance agent.  Lastly, it’s important that in reaching settlement the specific terms are spelled out at the mediation, and the mediator has all necessary parties sign a settlement which he will file with the court. 

       You can win at Mediation, but it just takes planning, preparation, and good execution.

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