Steps inside Litigation: Arbitration and Mediation

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Arbitration

If a case gets arbitrated, know that arbitration is not mandatory. It can be good for both parties and it can be done quickly. You usually can do it on medical records only, so you don’t need to bring an expert witness, and it can be more predictable. Both sides must then agree on the arbitrator, which typically is a retired judge or an experienced lawyer in the field who makes a decision. It’s a good, cost-effective way of resolving some situations. In some situations, however, it’s not–it’s decided on a case-by-case scenario.

Mediation

Another situation where a case can be resolved before trial is mediation. And typically mediation involves hiring a retired judge or an experienced lawyer who acts as a go-between the two parties. A lot of times it really helps people realize what the case is really about and either moderate their expectations, or pay more if it’s an insurance company, than what they anticipated. And a good mediation can frequently resolve cases, even hard ones, and in some circumstances things which seem un-resolvable are resolved by mediation.

Mediation Process

One big aspect of resolving a case in a settlement is the realization of who is owed money beyond what the client and the law firm will get. And there’s a lot of times medical providers are not paid.

You need to be in a position to either pay them out of a presence of a settlement, or negotiate down the amount owed to them.
This is definitively something you need to look into.

A lot of times health insurance companies need to be repaid for what they spent, so you need to know how much they paid and whether you can negotiate it down. One valuable aspect of preparation for any kind of mediation is figuring out a lien. What is owed to whom, how much is really owed, and what will people accept to make the case resolved?

You might also want to call them to have them available on standby and to be able to call the doctor’s office and say, “Hey, I can get you this much money. That’s less than what your bill is, but will you take it to be a guaranteed payment?” You also need to warn them that you’re going into mediation.

Health Insurance Involvement

Also involved are Medicare, Medicaid, and health insurance–there are different rules associated with each, which is something to be aware of—the client is often not aware. You need to explain to the client who’s owed what and where the bottom line would be.

When you make a decision, you can then calculate how much money is coming from the insurance company, and how much the client will have to pay to insurance. Sometimes they might need to pay Medicare or their emergency room bill because their health insurance didn’t cover it. They might not have health insurance.

You need to go through all of that in advance, so your client can make a good decision. Otherwise you can have a failed mediation because your client isn’t careful enough with making the decision at that point.
Going into negotiation, you need to have the scenarios ready so you can say to your client, “If they agree to this, this is what you’re going to get. If they agree to that, this is what you’re going to get.”

That is the art of balancing the expectation of what people want and what people feel they deserve with what is possible and how it can be achieved.
And a good point about mediation is that you have a neutral person, usually a retired judge, who can help to adjust everybody’s expectations.

They can explain to the client how the expectation is maybe a little bit too high, they can explain to insurance company how he or she doesn’t think that the case was that little, that there is a lot going on beyond insurance company’s assessment. Then they can also deal with the medical parties sometimes, you can get them on call with the mediator and mediator can say, “Hey, you either take zero or you take this much.” This is not what you want to hear, but this is the reality.

Knowing Your Insurance Company

In the District of Columbia, there is a very long and involved procedure of getting even the smallest case to trial.

Arbitration or mediation can really bypass a lot of it and get a quicker outcome and more cost-effective. This is something to always take into consideration, and insurance companies can be cooperative in that respect. It all really depends on insurance companies when you’re doing a personal injury case. You need to know who the insurance is and what the policy is.

Some insurance companies will negotiate in good faith to make a case go away before it’s filed. Some insurance companies might stonewall you until the brink of trial. Good lawyers know who they are, and know how each company works. This helps with making a decision, such as how to pursue the case based on who is on the other side, what their behavior is likely to be, and whether it makes any sense to engage in long-time pre-litigation negotiations. Sometimes they’re so aggressive and unreasonable that you need to hit them with a lawsuit before they’ll even take you seriously.

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