Many individuals navigating a lawsuit ask questions like, “What is mediation?” or “Will my case settle before trial?” These are important questions, as more than 90% of civil cases settle before trial in my experience. However, a good civil attorney approaches every case with a trial-first mindset, ensuring their client’s position is not weakened by assuming a settlement will occur. This dual focus—on trial preparation and settlement—is essential, especially in Montana courts, where understanding local practices and procedures is key to securing the best outcome for clients.
1. Settlement Before Filing a Case
Many disputes are resolved before a lawsuit is even filed. In such cases, the plaintiff’s lawyer typically sends a demand letter to the person or business accused of causing harm.
Key Points About Pre-Filing Settlements:
- Demand Letters:
- A demand letter outlines the harm caused, the damages suffered, and a proposed resolution.
- It often includes supporting evidence, such as medical bills, contracts, or photos of property damage.
- When Cases Settle Pre-Filing:
- In cases with clear liability and damages, and where the plaintiff makes a reasonable demand, the matter may resolve without the need for formal litigation.
Pre-filing settlements save time, money, and stress for all parties involved, making them an ideal resolution in straightforward cases.
2. Pretrial Settlement Without Mediation
The parties in a lawsuit are free to settle at any time, but settlements often occur after the discovery phase and pre-trial motions.
Why Discovery Influences Settlement:
- After discovery is completed (see my Discovery in Civil Litigation page), the parties have access to the evidence and testimony that would likely be presented at trial.
- This transparency allows both sides to make more informed decisions about the strengths and weaknesses of their case.
Role of Pre-Trial Motions in Settlement:
- The filing or ruling on pre-trial motions (see my Pre-Trial Motions page) often pushes parties to settle.
- For example, a motion for summary judgment might eliminate certain claims or defenses, providing clarity about what issues will go to trial.
Certainty Promotes Settlement:
- The more certainty parties have about (1) what evidence will be admissible; and (2) which claims and defenses will proceed to trial, the easier it becomes to negotiate a fair settlement.
3. Mediation
Mediation is a structured process where a neutral third party helps the parties negotiate a resolution to their dispute.
What Is Mediation?
- Mediation involves:
- A mediator facilitating discussions between the parties.
- A confidential and non-binding process designed to encourage settlement.
When Is Mediation Used?
- Court-Ordered Mediation:
- In some cases, the court may require the parties to participate in mediation before proceeding to trial (or before fully briefing an appeal).
- Voluntary Mediation:
- Parties can also agree to mediate at any time as a way to explore settlement options without the pressure of a court order.
Mediation Process:
- The parties and their lawyers decide on which mediator to use (if they cannot agree, the court may appoint one for them). Most times, mediators have a long history of civil litigation and are therefore experienced and knowledgeable about what cases are worth.
- The parties are generally expected to have exchanged at least one demand (issued by the plaintiff to the defendant) and one offer (issued by the defendant to the plaintiff) before mediation.
- The parties both send the mediator a mediation statement, sometimes called a mediation brochure, that outlines the facts, law, procedural history in court (if any), and argument that they believe supports their mediation position. Unlike trial, where a party’s attorney advocates for their client by primarily focusing on the strengths of their case, mediators often require parties be candid about their weaknesses as well. But don’t worry, these statements are strictly confidential: the other parties, their lawyers, the judge, and the jury will never see them.
- At mediation (whether done in person or by zoom/telephone or some hybrid thereof) the parties and their lawyers are each placed in a room separate from the opposing parties and their lawyers. The mediator goes back and forth between each room and attempts to bridge the gap between the offer and the demand by telling the parties the weaknesses of their case, the strengths of the other side’s case, and their opinion about where the case should settle.
- Many times, the case will not settle at mediation, but by hearing a neutral third-party’s opinions (i.e. the mediator), the parties will reconsider their positions and settle in the weeks following mediation.
- There is a common saying amongst lawyers that no one leaves a successful mediation happy. Indeed, unlike jury trials where juries can render massive verdicts akin to winning the lottery that you hear about on the news, mediations will never feel like winning the lottery. It is therefore important to have realistic expectations, and you should realize that the opening demands/offers are not typically realistic.
Benefits of Mediation:
- Allows the parties to maintain control over the outcome rather than leaving the decision to a judge or jury.
- Juries are incredibly unpredictable, one jury might award millions of dollars while another jury in the same exact case might award nothing.
- Provides an opportunity to resolve disputes in a less adversarial environment.
- Can lead to creative solutions that would not be available through a court judgment, such as apologies or a company changing its policies that led to the plaintiff’s harm.
Conclusion
Settlement and mediation are critical components of the civil litigation process. Whether resolving disputes before a case is filed, negotiating after discovery and pre-trial motions, or participating in mediation, these methods can save time, money, and emotional strain. However, successful settlement negotiations require careful preparation and a thorough understanding of the case.
If you have questions about settlement or mediation in Montana or need legal assistance, contact me today to schedule a consultation. Visit my Contact Page for more information.
*Disclaimer: the above is for informational purposes only and does not constitute legal advice.