In Maryland, reaching a settlement agreement prior to trial is a common way to resolve a personal injury case. The most popular way to reach an agreement is through alternative dispute resolution. Alternative dispute resolution means "[a] procedure for settling a dispute by means other than litigation." Black's Law Dictionary, 91 (9th ed. 2009). There two most popular methods of alternative dispute resolution are negotiation and mediation.
Negotiation in Maryland
Negotiation can be defined as "[a] consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter." Id. at 1136. It "usually involves complete autonomy for the parties involved, without the intervention of third parties." Id. Negotiations in a personal injury case between the injured party and the at fault party begin as soon as the injured party is back to full health, or as close to full health as he or she can get, termed maximum medical improvement. This is defined as "[t]he point at which an injured person's condition stabilizes, and no further recovery or improvement is expected, even with additional medical intervention." Black's Law Dictionary 1068 (9th ed. 2009). One of the reasons that compensation is not discussed right after the injuring incident is because it can be difficult to measure the extent of an injury right after an accident has occurred. Waiting until the plaintiff has fully recovered, or recovered as much as is possible, from his or her injuries allows for a more accurate measure of damages.
The biggest advantage of negotiation is that the parties have complete control over the process and the terms of the settlement agreement. If a plaintiff and defendant can reach agreement before filing suit then a court does not even need to sign off on the settlement. The agreement reached can be whatever the parties want it to be and the agreement can remain private. Once a lawsuit is filed negotiations between the parties can, and likely will, continue. The difference is that once a settlement agreement is reached, a court may need to approve it before the case can be dismissed. Some courts require parties to attend a settlement conference prior to trial, but this vary's by state.
Mediation in Maryland
Mediation is a form of negotiation. It is "[a] method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution." Black's Law Dictionary, 1071 (9th ed. 2009). A mediator is hired by one or both parties and the parties attend a mediation session where the mediator attempts to get everyone to agree on a settlement. A mediator is neutral and does not have a stake in the case. Mediators can be very helpful in reaching agreements because he or she can help the parties better communicate and understand the other side's perspective.
A typical mediation involves both parties meeting in the same room where they explain their side. Then the mediator usually has one party move to a different room. The mediator then goes back and forth between the parties in an attempt to help them reach a favorable resolution for all involved.
Mediation is nonbinding, meaning that the parties cannot be forced to come to an agreement. In addition, typically anything divulged during mediation is not admissible in later court proceedings. Md. Code Ann., Cts. & Jud. Proc. § 3-1805 (LexisNexis 2015). Some states even require parties to attend mediation prior to their case going to trial.
An experienced personal injury attorney can guide you through each step of the negotiation process. If you are taking the first steps in filing a claim, or think you might have a claim, please contact our office today for a detailed evaluation of your case.