Fifteen years ago, the idea of formal mediation of a serious personal injury case in Massachusetts, was cutting edge stuff. Settlement of most cases took place the old-fashioned way, via phone calls or meetings between counsel and at times, insurance adjusters. Today, by way of contrast, a look at the advertisements in the Massachusetts Lawyers Weekly, shows more than 30 ads for alternative dispute resolution. Many of the ads are by ADR companies that maintain substantial lists of professional arbitrators and mediators. Many a lawyer, especially those who have practiced for many years, and a significant number of retired judges, lend their experience to the alternative dispute resolution movement. In addition to commercial ADR firms and individuals, are numerous court-operated ADR services.
Some old timers – fewer and fewer in number – long for the good old days when “real” trial lawyers would prefer the jury verdict to settlement. The fact is that juries are inherently unpredictable. Even in cases of wrongful death or catastrophic personal injury, some compromise in a sure settlement is usually preferable to the vagaries of a jury trial. Still, the plaintiff’s lawyer must be prepared to take the case to the jury if the insurance company misjudges and offers too little to settle. And as is true for trials, obtaining a good settlement at mediation requires thorough preparation and skilled presentation, so the message is clear that the case is trial-ready should settlement efforts fail.