Construcion Litigation

Construction Litigation

Construction mediation is one of the most complex areas of law there is.
Personal Injury

Personal Injury

Experiencing an injury through no fault of your own is a scary and frustrating experience.
Commercial Disputes

Commercial Disputes

Commercial disputes are common in the business world.
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Negotiating a Fair Settlement in a Personal Injury Mediation Session

In personal injury mediation, the parties may be able to resolve the case, enter into a settlement agreement and avoid expensive and time-consuming litigation. Here are two strategies that can help the parties to negotiate a fair settlement. Negotiating a Fair Settlement In personal injury mediation, the parties may be able to resolve the case, enter into a settlement agreement and avoid expensive and time-consuming litigation. Here are two strategies that can help the parties to negotiate a fair settlement.

Make Initial Agreements on the Things Not in Dispute

There may be certain aspects of the claim that the parties agree on so for example, they may agree on:

  • That the insured party is liable
  • The extent that the victim was partially liable
  • The amount of medical expenses already incurred
  • The amount of lost employment wages

By starting on the areas that the parties agree on, this can create a foundation of trust and help create momentum toward an eventual settlement. The parties may then agree on the remaining issues to be discussed and the order that they should discuss to create a reasonable sequence for discussions that will be most likely to lead to an efficient resolution of the case.

Create a Settlement Range

Establishing a low and high amount for settlement can help ease the stress of both parties by establishing a floor for the accident victim and a ceiling for the insurance company. This strategy can propel the parties toward settlement because they know they will reach a settlement and just have to hammer out the details.

Five Tips for a Successful Construction Mediation

Mediation can foster improved communication and offer a resolution that allows a project to continue and avoid costly litigation. Here are some tips that can help you make the most of construction mediation.

Be Prepared

At mediation, you may be settling your case, so it is important that you can negotiate from the strongest position. Bring any evidence that you need to mediation with you.

Have All the Necessary People Present

If the dispute involves multiple parties, such as contractors and subcontractors or lenders or insurance agents, be sure that all of the necessary people who have the authority to resolve the case are present. Otherwise, you may waste time and reach a conclusion only for this to fall apart.

Treat the Mediator as an Ally

The mediator is not a judge. The mediator is not your lawyer. Instead, the mediator is an impartial individual who tries to help the parties reach an agreeable resolution. The mediator can give you important information about your claim to help you better evaluate your position.

Be Willing to Cooperate

Mediation provides parties the opportunity to work together to reach an agreeable solution. In many construction mediation cases, the parties do want to continue the project, so it is important that you approach the problem in a cooperative manner. Be respectful during times when you are in the presence of the other party and truly consider the information the mediator shares about the benefits of concluding the case through a mediated agreement.

Consider Creative Resolutions

Parties are not limited to decisions that would be made by a judge or jury. Consider creative options such as modifying the contract, creating structured payments, entering into a new contract or asking for an extended warranty.

Preparation is a key for a successful mediation

PREPARATION IS KEY FOR A SUCCESSFUL MEDIATION

Because Mediation is an informal process, some participants fail to do the planning and preparation necessary to take best advantage of the mediation process. It is easy when you are in a dispute or litigation to believe that ultimately all is going to be resolved by a jury or a judge at trial. The hard facts are, however, that parties rarely have their litigation resolved at trial. Only 2% of State lawsuits filed are tried and less than 1% of Federal court cases are tried. The other 99% are resolved in one fashion or another prior to trial, and most of those at mediation.

In order to take full advantage of the process and advance your own position, you have to be prepared, knowledgeable and adaptable as you can be going into the mediation process. Knowing the facts and law, your position, and that of your opponent will give you a clear advantage in negotiating. It also sends a signal to the other side that you cannot be taken lightly and your concerns or grievances must be addressed. The preparation that includes knowing your opponent’s case allows you to anticipate your opponent’s strongest argument and be ready with countervailing arguments both legal and factual.

PREPARE YOUR MEDIATOR BEFORE MEDIATION.

Most mediators will ask that they be given an outline of the case by all parties prior to the mediation. You want to take advantage of this opportunity to clearly set forth why you are entitled to the relief you seek. This document should be straight forward and as factually based as possible. While the mediator is not the decision maker in the process, you want him/her to be knowledgeable of the facts so that he/she can be persuasive with the other side in presenting your arguments.

Prepare an opening statement. Again, you should reiterate the facts and law of your case, why it would be attractive to a jury, and likely have a positive result. Demonstrate the righteousness of your position. The opening statement is directed primarily towards the other side and it may be your only opportunity to speak directly to the decision makers on the other side. You want to explain both the strengths and weaknesses of yours and your opponents’ case and why in the end you believe you will prevail. Because this is a negotiation process avoid being overly confrontational or accusatory which can lead to polarization. If there is a high emotional aspect of the matter, it would be best presented early in the mediation in the hopes of getting that aspect of the matter vetted early. Each party’s emotional feelings are legitimate, but emotions frequently stand in the way of resolution.

LET THE PROCESS FLOW

Starting positions are meaningless. It is not where we start that matters, it is where we end that matters. Frequently, after the initial exchange of information in an open session, the parties will break into separate rooms for private consultations with the mediator. Do not be surprised if the mediator plays devil’s advocate against your case. Remember, the mediator is doing the same thing in the other room, as well. This is your opportunity to remind the mediator of what you told him in your pre-mediation letter, what came up in the opening statements that helped your case, as well as provide any additional information that you held back. Always advise your mediator at the end of the session what he can and cannot tell the other side.

During negotiations, be authentic. If you are quiet and unassuming, use that to project a steady approach to convey strength and conviction in your position. If you tend to be more flamboyant in nature, use your personality to convey certainty and conviction. If you tend to be more aggressive in your approach to matters, tone it down so as not to alienate or irritate the mediator. Listen carefully to your mediator. Remember that your mediator is hearing both sides of the issue and while the mediator may not be authorized by your opponent to reveal everything, how he/she presents information from the other side or characterizes a fact or position can give you insight into what is going on in the other room. Be prepared to respond to the weaknesses he points out in your case. The mediator who is relatively new to the matter is unlikely to have an insight that the other side is not already aware. If the mediator does bring to light a new weakness in your case and the matter does not resolve you can, through further discovery or the use of further research, strengthen that aspect of your case.

Mediation is the time where you and your opponent control the outcome of your dispute. The better prepared you are, the more knowledgeable you are of your position and that of your opponents, the greater the degree of control you will have during the process.

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