Reaching a settlement in mediation in a civil case often evokes the same feelings as mediation in other situations. You may feel relieved that the pressure is over or excited that you have found a way to move forward in your life without the stress over litigation. You may feel regretful that you didn’t get as much as you were hoping for. You may be wondering “ What if….?”
What happens next? This post focuses civil cases. In the United States, the process we use in a legal case depends on the type of case: civil or criminal. A civil case involves a conflict with another person or a company. In a criminal case, the litigation concerns a wrongdoing that violates a criminal law of the state.
There is a wide range of civil cases. Civil cases can involve litigation between two companies about a contract, employment discrimination, consumer law violations, accidents or personal injury cases or any number of other disputes about the rights and duties between two parties. We can look at mediation in a personal injury matter as an example as to the process of mediation in a civil case.
Mediation is often the best way to resolve a civil conflict. If selected early, mediation saves time and money for both parties in legal expenses. Our office encourages clients to participate in mediation at the earliest possible date, often BEFORE filing suit, to be sure to gain the most benefit possible from early resolution. In many states, mediation is required in all civil cases before a trial is scheduled. Regardless of when the mediation occurs, what happens next?
If you don’t reach an agreement: If you don’t reach an agreement during the first mediation session, don’t give up! About 98% of all civil cases settle before trial so it is likely that your case won’t go to trial. Sometimes, the process opens up communication and it becomes more likely to settle quickly and fairly following the mediation. In other situations, a further mediation session is helpful. If your mediation fails to initially resolve your case, the case will continue through the process, but your attorney should continue to address the potential for resolution or settlement.
If you do reach an agreement:
- Concerns. Both during and after mediation, you may have concerns about the process and the outcome. Check with your lawyer or your mediator before you sign the agreement and be sure that all of your concerns are addressed. Once you sign, this most likely will be the only chance you have to settle your case!
- Fees. There will be fees associated with the mediation. Normally, the parties split the fees equally in civil mediation. Sometimes the parties agree that one party or the other will pay the mediation fees. In some cases, the courts pay mediation fees.
- Release. When you reach an agreement in mediation, the mediator usually writes the agreement up and the parties and their attorneys will sign it. This agreement is often private and in civil cases may not be sent to the judge.
- Check. The settlement check is sometimes sent to your lawyer along with the release or is sometimes sent once the lawyers return the release to the insurance company. Once the check arrives, it probably will be issued to both the parties and the lawyers. The lawyer deposits the endorsed check in a special trust account until the check clears the bank and the settlement proceeds can be paid to you, your creditors and any lien holders. Statutes and regulations limit time limits for most of these steps.
- Disbursement. Once the check clears, the lawyer should work with you to verify your medical bills and determine any liens that might be placed on your settlement check. For example, if your health insurance, "med pay" or Medicare paid bills related to the accident, there might be a lien or “subrogation interest” on your settlement. Your attorney will verify that, along with attorney’s fees and costs before the payment is issued to you.
- Your check. Once your attorney determines the payments from the settlement, you will meet with the attorney and pick up your check. You should receive copies of any checks issued to pay your bills, liens and subrogation interests.
- Report. The mediator will send a report to the judge notifying the judge that the parties appeared for mediation and participated in good faith. In many civil cases, the specific agreement is not sent to the judge. Even when you don’t reach an agreement, the mediator sends this report to the judge.
- Dismissal. If the mediation resulted in a settlement or agreement, once the releases are signed and the payment is made, the lawyers will send a dismissal order to the judge who signs the order. At that point, the legal case is resolved and in most civil cases the parties will not need to return to court.
You should plan to have an effective advocate with you during mediation of your civil case. To be effective, select a lawyer who is familiar with mediation and negotiation. Your lawyer should be familiar with your case, your injuries, your bills, and especially what you need from the case to move on with your life. Most lawyers will meet with clients before the mediation to prepare for this important step.
Our office provides both mediation services and legal representation at mediation. If you have a civil case and would like to know how mediation can help you resolve the case, please contact us with your questions.