Alternative Dispute Resolution or Mediation in Wrongful Death Cases

Depending on the jurisdiction and the complexity of a wrongful death case, the discovery phase in litigation may take many months or sometimes even years. When discovery is finally completed, and each side generally knows what evidence will likely be offered at trial, the parties may then begin to conduct settlement discussions.

Sometimes, the law of the particular jurisdiction or venue will require that the parties engage in meaningful efforts to settle the case other than just simply negotiating between themselves. These efforts are sometimes called alternative dispute resolution or ADR. One example of ADR is mediation. In mediation, the parties agree to hire an impartial person (called the mediator) to help them settle the case. Often times, the mediator is a retired judge or an experienced attorney who has advanced training and/or education in the area of ADR.

Usually, the process of mediation is voluntary and non-binding (unless a settlement is reached). This means that a mediator cannot force a party to settle and either party is permitted to reject offers from the other side. But the parties are expected to participate in mediation in good faith with the goal of trying to settle the case instead of going to trial. Typically, the mediator goes back and forth between the parties and communicates settlement offers. The mediator may also communicate strengths and weaknesses of each side’s case and discuss potential outcomes if the case proceeds to trial.

A mediation session is typically a confidential proceeding, so anything that is said during the session cannot be used at trial. Many times, mediation can be used successfully to resolve a case involving wrongful death claims. Mediation sessions can be held over the course of one day or over several days, depending on the size and complexity of the case.

Evaluating settlement offers at mediation or during ADR depends on many factors. The experience of the wrongful death attorney is often important because a settlement offer will always be judged in relation to how a jury may decide the case. Thus, you want an attorney who has successfully litigated wrongful death case(s) in the past. Both sides will attempt to predict how a jury might rule and then factor this into their evaluation of the case. The specific facts involved in the case and how those factors are highlighted or proved by the wrongful death attorney can also have an enormous influence on the insurance company’s evaluation of the case.

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