A personal injury or workers’ compensation case going to trial is a huge step. Settling a case out of court is the optimal scenario since a trial is a very lengthy and expensive endeavor where the outcome is much less certain.
Fortunately, an alternative means to resolving disputes exists so parties can perhaps negotiate a settlement before undergoing the rigors of a lengthy trial. Mediation is the most commonly used form of alternative dispute resolution.
Since 1995, the Colorado Office of Administrative Courts (OAC), one of the main providers of mediation services in workers’ compensation cases, has used mediation with over 600 parties to successfully resolve disputes approximately 80% of the time.
Judges and legal assistants trained in mediation facilitate communication, clarify issues and help parties assess their options. They do not tell parties how to resolve their dispute, that’s up to them. Therefore, participants have to be willing to think creatively about options to resolve their dispute.
Mediators review each case before a scheduled mediation session. Sessions usually begin as a joint meeting where the mediator explains the process; each party then makes a short statement and has the opportunity to ask clarifying questions.
From there, each party meets individually with the mediator in what’s known as a caucus. These meetings are completely confidential unless you expressly authorize the mediator to share something with the other side. Often times, the mediator will relay settlement offers and counteroffers between each of the parties.
Continue reading for additional information on mediation to help you prepare for a scheduled session and learn more details to see if it can work for you.
This will be the best, and last opportunity you will have to settle your Colorado workers’ compensation or personal injury dispute out of court. Parties have more flexibility in developing settlements than an administrative law judge, state or federal court judge, or jury will, which are bound by the statutes and regulations applicable to your case.
You also have more control of the outcome in mediation. The mediator simply facilitates the conversation while each party, in good faith, discusses possible solutions to the matter.
The purpose of mediation is to guide parties to consider the interests behind each of their respective positions. Understanding why and openly identifying each side’s motivations helps them reach agreeable solutions. Sometimes it’s possible to agree on a settlement that satisfies both parties’ interests.
Mediations are more likely to succeed when you and your Colorado personal injury attorney are familiar with all aspects of the case. How objective is your evidence? Do you have any documentary evidence like billing statements, correspondence with doctors, police reports and even prior case law? If so, you or your attorney will bring those to your hearing.
Analyze the other side’s case too and know its strengths and weaknesses. Doing this helps you realistically assess your options.
It’s best to attend sessions in person along with your Colorado workers’ compensation or personal injury attorney so you can fully understand the tone of the discussions. Whoever is representing your side needs to have full settlement authority. Calls to individuals not physically present are possible but the mediator will most likely need to speak with them as well.
An attorney may come in thinking they have settlement authority but alternative solutions may arise that require your approval. Without being present at the discussions, you may overestimate the strength of your case and underestimate your opponent’s. This is where roadblocks often happen in mediation sessions.
Request a consult with a Colorado workers’ compensation and personal injury attorney at the Babcock Law Firm to discuss mediation options and ways you can bring the strongest case to effect the best possible outcome.