10 Cost-Effective Resolution Strategies To Employ Now

Maybe the 15 days got away from you, or maybe you received a letter of representation before you had a chance to call. Either way, the name of the game is still early resolution. I learned a long time ago that you don't know unless you ask. In addition to gathering the claim facts, ask counsel if they have a settlement demand. You won't settle every case this way. However, if you never ask you won't settle any.

3. Pre-Suit Mediation

You have an engaged claimant's attorney and a demand; however, you are not close to a settlement. You can just let it go and let counsel file suit, or take it one step further. I'm not alone in saying that many cases end up settling years later for money the claimant should have accepted early on. Since counsel is engaged, why not explore mediation now? While you won't get formal discovery, each party should submit a confidential pre-mediation statement. That way, even if the case does not settle, you will obtain important insight early on.

4. Immediate Post-Suit Settlement Discussions By Counsel

Let's say settlement discussions either broke down or never happened. Now your claim has now become a lawsuit. The goal, however, remains the same. Your early resolution efforts should be communicated to counsel. Not only is it crucial they know the history of the discussions, but they will also see how serious you are about using ­various methods to accomplish your goal. Counsel should be expected to pick up where you left off.

5. Offers of Judgment

Not all state jurisdictions have them, but for those which do, this can be an effective strategy. They vary from limiting attorney fees to obligating the losing party to pay them (and other things in between). While it may not be available in state court, it is in federal court. If you have diversity jurisdiction, then that may be another data point in deciding whether to remove the case.

6. Settlement Days

It's clear that settlement days are inviting. Counsel knows you are serious just by the sound of it. Settlement days can be can be an effective way to resolve many claims at once. They can be held in-house, at your counsel's office, or at a mediation company. Regardless of what you do, be sure to do it with plenty of lead time. That way, you can ensure the maximum number of claimants or plaintiffs are present and prepared to have serious discussions. If you don't have a volume of cases to hold a "settlement day," then perhaps counsel can involve another carrier, or you can do it in a small region.

7. Pre-Trial Mediation

Although mediation can take place any time, it is commonly used after most (or all) of the discovery is complete. Some courts offer or even require court supervised mediation. The court attorneys, magistrates or retired judges assigned to this task perform a lot of it. This can be a cost-effective way to have the case negotiated by a skilled mediator.

In New York County, we have court mandated mediation. Here, a number of court attorneys work hard to get the cases that come before them settled. If going the private route, then there are any number of services that arrange mediation. Selecting the mediator, however, is an important step in putting together a successful mediation.

In private mediation, the mediators range from attorneys, to attorneys with a particular skill set to retired judges. If your case involves particular technical knowledge, then make sure the mediator you select has that knowledge. And while we like to think that someone serving as a mediator will be neutral, it is important to know whether your co-defendant or even the plaintiff's counsel regularly mediates a volume of cases before the mediator you are selecting for your case or has some connection to the mediator.

8. Final Offers

These should not happen by accident or as a threat. Final offers should be calculated, well-thought out, and part of an overall strategy. Once you have gathered enough facts and evaluated the case, you are in a position to consider this strategy. If your jurisdiction allows it, you can combine this with an offer of judgment. Most cases settle. For those that do not settle, it's often because someone mis-evaluated his or her case. So use this as a meaningful way to communicate to all that you are serious about settlement and willing to go the distance.

9. Binding Arbitration

Like mediation, binding arbitration can either be private or court-supervised. It can also involve all parties or just one or more of the co-defendants. In New Jersey, for example, there is court-mandated required arbitration. There, a skilled attorney arbitrates the case prior to trial. If either side is unhappy with the result, then it can then file for trial.

Perhaps your case involves multiple parties who can agree on the value of the case, but not who should pay what portion of the settlement. Binding arbitration can be a good way to agree to settle the case and resolve the dispute about the apportionment without a jury.

10. Notice of Appeal

Whether it's an adverse motion finding or jury verdict, there can often be settlement value in simply filing the Notice of Appeal. If counsel knows the case is not over and that they will have to defend their victory on appeal with a resulting delay, then you have again opened the door to ­settlement.

Resolution Facilities and Other Statutory Mechanisms for Catastrophic Claims Resolution

The title of the article alludes to ten strategies. This could be eleventh, because it's not available in most cases. Generally, this is created by a statute or court action. Examples include the Gulf Coast claims facility established after the Deepwater Horizon catastrophe, and the claims facility set up to deal with the Dalkon Shield litigation. Corporate bankruptcies also give rise to court-supervised claims resolution. If you find yourself involved in large-scale catastrophic claims, then explore such a resolution facility. From the start, your goal is prompt and cost-effective claims resolution. These ten methodologies provide claims professionals with a number of tools to accomplish that goal. They can be combined and used in various orders and at various stages to help you close that claim. Have you used a methodology or strategy you don't see here? Then we'd like to hear from you.