Handling your Georgia Personal Injury Claim – A Complete Guide Part 5

  • How will my case get settled? Will I need to go to court?

Q: What is the difference between negotiation, mediation, arbitration and litigation?  How and when do you decide to move from one to the other?

A: Negotiation is simply the process of communicating with the insurance company. We start out with a settlement demand, and the insurance company will respond with an opening settlement offer. At that point there will be communications back and forth where each side works to get the other side closer to their ultimate number, to try to get the case settled. After the negotiation process, if the offer is within our range of settlement evaluation, and the client wishes to settle, then the case is settled. If we are unable to negotiate a favorable settlement and the client and attorney decide they want to move forward, the next step in the process is to file a civil action (AKA law suit) with the court. The law suit is served on the responsible party, and at this point the litigation process begins.

The litigation process consists of receiving documents, requesting and receiving answers to written questions, depositions of parties, doctors, witnesses, etc. This is called the discovery process, and is generally lasts around six months. Once the discovery process is concluded, the case is placed on the judge’s trial calendar for a jury trial. In the state of Georgia, it is a twelve person jury, and a unanimous verdict is required.

Mediation is a proceeding where the parties rely on a mediator to resolve a case. It is generally a very experienced lawyer or a retired judge. The mediator is a facilitator of the negotiations, and will work to assist the parties to resolve the case.

Both parties agree on the mediator, the date is set, and the mediation begins. All parties involved will meet in a conference room, and make their arguments. Then each party will meet in a separate room with the mediator, who will then go back and forth between parties, pointing out the strengths and weaknesses of each other’s sides, and how a jury might respond to those points. He or she will use those facts to try to encourage the insurance company to increase their offer, or to persuade the plaintiff to reduce their demand. If an agreement is made, it typically is not a number that either side is excited about, but is one they can live with. The virtue of settling a case through mediation is certainty. The downside of not settling a case through mediation is the potential for litigation. Litigation (AKA a jury trial) not only introduces the risk of uncertainty, as often there is a big loser and a big winner. But it also is more time consuming, and more expensive to pursue on both sides.

Arbitration is much like mediation, but with one big difference. It is like a mini trial. With mediation, the parties must agree on the outcome in order for the case to settle. In arbitration, the arbitrator determines the outcome of the case. Arbitration is something we do not pursue, as we believe our clients are the ones who should control whether they want the outcome to be binding or not.

Part VI - Continued