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Final Call: Is there a Judge in Settlement Talks?

Posted on: November 4, 2022

Chi Hung Nguyen
November 4, 2022

Final Call: Is there a Judge in Settlement Talks?

who makes decision in a settlement and alternative dispute resolution

Most people know that a trial involves a judge, but unless the parties reach a mutual agreement, the third-party making decisions in settlement conference, mediation and arbitration vary.

In settlement conferences, all of the parties to the lawsuit come together to discuss issues like who is liable, or responsible for the injuries, how serious the injuries are, the range of a jury verdict and the overall settlement value. Knowing whether to enter settlement discussions at all begins with asking the right questions and depends on each case’s unique needs since several factors impact lawsuit settlements.

Time and Money

For example, while mediation is cheaper than going to trial, it can still be expensive. Experienced attorneys also can tell whether settlement negotiations is just the insurance company trying to cause delay, or is going to be used to get information that can be used against an injured claimant. Timing is key.

One of many insurance company tactics is to refuse to accept the idea of any kind of arbitration or mediation proceeding to resolve issues on liability and damages. Delay can work against an injured claimant because the insurance company typically has the time and resources to delay, while the claimant typically has to undergo medical treatment, repair property damage and more in order to return to their normal lives. To avoid unreasonable delays, injured claimants likely need to prove their claim is serious and more than a “nuisance claim.” Establishing clear liability can minimize the time and expense involved in lawsuits.

Even if the insurance company agrees to work with the claimant to go to appraisal, arbitration or mediation, they do so with a sweeping declaration that the insurance company will appeal any decisions that does not favor the insurance company.

On the other hand, if an injured claimant files a lawsuit right away before trying to negotiate and reach an agreement with the insurance company, it may not be willing to enter settlement negotiations after the fact because the insurance company’s lawyers will begin by filing multiple pretrial motions. There are many types of pretrial motions, which are essentially legal mechanisms that seek to set the parameters of the lawsuit and ask the judge to make rulings in the in the favor of the party making the motion. In turn, the receiving and responding party must file its own responses, or risk giving up certain legal arguments.

Many judges support settlement negotiations and alternative dispute resolution. After the COVID-19 Pandemic, state governments faced the shutdown of its courthouses and the Supreme Court of Texas issued many Emergency Orders to help curb exposure. When courthouses re-opened, there was a backlog of cases that needed to be heard. As a result, many judges encourage settlement conferences in the interest of judicial efficiency and to conserve government resources. Settlement conferences can be ordered by a particular court’s judge or by mutual agreement of all the parties.

Who makes the final decisions settlements? 

There are many regional mediation provider services and organizations like the Judicial Arbitration and Mediation Services (JAMS) and American Arbitration Association (AAA) that dominate the private judging industry. There is also a wide range of private mediators, including:

  • Judges,
  • Arbitrators,
  • Mediators, or
  • Hearing examiners.

Each typically have extensive legal experience, but some may have a track record that should be considered by personal injury attorneys. For example, if a particular mediator used to be a lawyer who primarily worked for insurance companies and defendants for several years and has a track record for undermining the value of an injured claimant’s case, this may make the settlement negotiation particularly challenging. Many mediators used to be judges over their own courts, and some were lawyers with various skill levels and backgrounds. As discussed above, while mediation and settlement negotiation can be less expensive than going to trial, some mediators still cost up to $10,000 per day. If the insurance company suggests using a particular arbitrator, your attorney can challenge this recommendation.

A few questions the attorney can ask when considering a potential mediator are:

  • Did the person work for an insurance company or a private firm in the past?
  • Does the person have a legal background?
  • Is the person a bureaucrat or a professional?

What are the types of Alternative Dispute Resolution?

 Generally, alternative dispute resolution offers both sides to meet with an impartial and neutral third party to help facilitate settlement negotiations. There are 4 types of alternative dispute resolution:

Mediation: Outside of legal formalities like a complaint, discovery and motions of a lawsuit, mediation involves the mediator first meeting with the plaintiff, usually the injured claimant, and then the defendant, the person or company defending the lawsuit. The mediator then informs both sides of the strengths and weaknesses in their cases, with the goal of limiting the issues in the dispute. Finally, the mediator makes recommendations about liability and damages.

Private Judge: Some states allow retired judges, JAMS judges and AAA judges to offer their services like they used to in the past and make decisions as they did when they were judges sitting on bench.

Arbitration: This may be a voluntary program, and the parties can decide on whether there is more than one arbitrator, whether the arbitrator’s decisions are binding and more. Many everyday contracts include arbitration provisions that decide the setting for arbitration.

Appraisal:  Typically a result of property loss, appraisal may come about as a result of an appraisal contract clause in the property policy which either the policyholder or the insurance company can invoke if there is an unresolved dispute about value of the damaged property.

Whether a case can reach an early settlement or needs to proceed to trial, experienced attorneys for injured claimants know they must be familiar with the facts and issues of each of their cases because the mediator and judge will conduct a probing examination of the witnesses and parties to the case. This means attorneys should be knowledgeable about the accident, injured claimant’s earnings, the seriousness of the injury, and the claimant’s medical history.

Building a case and using successful settlement negotiation skills is key, since anything from a statement made at the scene of an accident to a social media post can be used against an injured claimant. The best negotiators and attorneys also avoid common pitfalls and mistakes. Seek the advantage of retaining a skilled personal injury negotiator.

Contact an experienced personal injury lawyer

Navigating complex personal injury cases and handling insurance companies can make the recovery process even more difficult. Experienced attorneys strategically weigh the cost and benefits of each case to minimize the time and expense involved while maximizing their clients’ compensation.

Are you trying to secure your financial recovery with the help of experienced attorneys? If so, we can help.

The Pusch & Nguyen Law Firm has helped countless Texans handle their insurance disputes. Our experienced trial lawyers have gone up against some of the biggest names in the insurance industry while successfully bringing home payouts for clients. Our successful reputation speaks for itself, and with offices in both Houston and San Antonio, we are well equipped to assist Texans who are in dire need of our services. Register online for a free case evaluation or call us today at 713-528-8108 (Houston) or 210-702-3000 to schedule an appointment with a member of our team.

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