What is Mediation
Most civil (common pleas) cases in South Carolina require that the parties participate in “alternative dispute resolution.” The “alternative” meaning “not court.” For most cases, this means mediation.
When Do You Mediate
Let’s start with the beginning of a hypothetical case: you were injured by a drunk driver in Barnwell, South Carolina. We have brought a claim against the at-fault driver and the bar that over-served the driver. You have continued to treat for your injuries, but the adjusters for the driver’s and bar’s insurance companies refuse to pay the money the case is worth.
We file a Summons and Complaint against driver (negligence and recklessness) and the bar (dram shop and negligent hiring, retention, and/or supervision). We have exchanged written answers and documents with opposing counsel, and depositions have been taken of you; the at-fault driver; the bar representative; and other witnesses such as doctors, on-scene witnesses, and damages witnesses. Now the parties agree to mediate.
Typically, at this point in the case, no offers have been given by the plaintiff or defendant. Regardless, we prepare our positions as supported by evidence and testimony, and we provide this information to the defendants prior to mediation. This allows the other side to know where we stand at mediation before we even start mediating.
What is a Mediator
A mediator is a court-certified attorney whose job it is to be impartial while also attempting to get the parties to agree on a settlement number. Ultimately, the mediator needs to be smart, experienced, tactful, and cognizant of all issues in the case and how South Carolina jurors will receive the evidence.
What Goes on at Mediation
Each mediation is different, but most involve the plaintiff, the plaintiff’s attorney, the defendant, the defendant’s attorney, the defendant’s insurance company’s representative, and the mediator. Each party will have agreed in writing to (1) participate in good faith and (2) keep the discussions confidential.
Mediation normally begins when everyone is in the same room, and the mediator discusses his/her role. Then, the plaintiff’s attorney gives an opening. In response, the defendant’s attorney gives his/her opening. During the openings, each attorney normally explains their position succinctly, while countering the expected arguments from opposing counsel.
After openings, the plaintiff and his/her counsel go to one room, and the defendant and his/her attorney and insurance representative go to a separate room. From there, the mediator floats between the rooms, taking offers and counter-offers to each side.
Normally, with each counter-offer we give in our cases, we have a point/piece of evidence/case law/reasoning for the mediator to take with our offer. This shows that we are on top of everything and aren’t just throwing numbers out there. From there, the parties either reach an agreement on a settlement number or they come to “an impasse.”
What Happens After Mediation
If mediation results in a settlement, that’s the end of the case in essence. The parties will agree on the language of the final release and dismissal of the lawsuit, and the insurance companies will cut and send checks to us for disbursement.
If mediation results in no settlement (i.e., “an impasse”), we keep the gears running. Typically, we then use a combination of the following tactics: take additional depositions that we were waiting to schedule, file an Offer of Judgment to let the opposing party know that they have 20 days to accept our final offer, obtain a date-certain for trial, and prepare for trial.
In most cases that do not settle at mediation, both sides will discuss settlement again prior to trial. However, when disagreements exist on material factors such as liability or expert testimony, trial may be necessary. At Littlejohn Law, we keep the client (1) updated on everything that is happening and (2) aware of why we are taking each step. The client deserves this information and communication.
Experienced South Carolina Tort Attorney
Attorney Andrew Littlejohn Johnson has mediated numerous tort cases all over South Carolina. When it comes to mediation, the key is preparation and truth. We are prepared to counter all arguments the defendants may make at mediation, and we have made the defendants aware of our position. This allows us to enter mediation with a plan and responsiveness. If you are unrepresented and unsure whether your case needs the attention of an attorney, feel free to call or email Andrew. We look forward to getting to know you and your case.