During the course of your Michigan wrongful death case, you will encounter alternate dispute resolution. This page is intended to inform you about the process and whether or not you may want to consider these options before, during and even after your case has gone through the trial process. There are many different forms of alternate dispute resolution, but we will cover the main avenues for resolving your case without a jury verdict.
In Michigan, parties to a civil lawsuit can choose to engage the services of an experienced mediator to settle or resolve their claims. The process is governed by Michigan Court Rule 2.411 and a judge may order any civil case to mediation at any time. This can even occur before a lawsuit is filed, but typically it is done while the case is pending and either before or after the discovery process is completed. A skilled mediator will usually ask that both parties provide him or her with a mediation brief that includes the key exhibits in the case. The mediator will have a chance to review all of the briefs and will then meet with the parties. There is no hard or fast rules for how to conduct a successful mediation, buy many mediators will conduct “shuttle diplomacy” where they will speak with each side separately and then caucus after each session. The mediation process can even be used to settle cases that have gone to appeal.
Case evaluation in Michigan is mandatory and will involve the court appointing attorneys to review briefs filed by all the parties and then issuing and opinion on who should prevail. This will also include a monetary figure that is intended to bring the parties to a resolution. Case evaluation is governed by Michigan Court Rule 2.403. A panel of three attorneys who do not have any involvement in the lawsuit will be appointed by the court. In the court rules, there are specifications for supplying the briefs to the panelists, timing of the events, payment of their fees, how the hearing is to be conducted, and what effect there may be for accepting or rejecting the award.
This is significant for your case and you need to understand this process as there are penalties for not accepting an award after case evaluation. If the rejecting party does not improve upon a trial verdict by 10 percent over the award, and the other party accepted the award, there could be attorney fees awarded which could be a substantial amount. This is often times used as proper leverage to get a client to accept the case evaluation award. It also means that case evaluation should be taken very seriously by your attorney and you should be intimately involved in the process.
Our firm has used binding arbitration very successfully to settle cases both before the filing of a lawsuit and during the course of a case. One of they key benefits to a binding arbitration is that it is final and the outcomes can be negotiated by the parties. An example of this is that the parties can limit their risk by engaging in “high-low” agreements that are unknown to the binding arbitrator. This can be done with jury verdicts as well, but it is much more effective when a professional arbitrator is deciding the matter. There have been some cases recently where binding arbitration clauses have been stricken, so any attorney involved in your matter must be well versed in these clauses, especially in nursing home wrongful death cases.
In High v. Capital Senior Living Properties, a nursing home resident filed a lawsuit against the facility for failing to properly supervise his mother. The Plaintiff claimed that they were negligent when they allowed her to wander from the facility where she froze to death. The facility filed a motion to dismiss claiming that the parties were bound by a binding arbitration clause. This agreement was placed in the admissions documents, but the Plaintiff claimed that the clause was never signed by the resident herself, she did not have the mental capacity at the time due to her alzheimer’s disease. A federal court struck the clause and ordered that the case go to trial. Another dangerous fact about these arbitration clauses is that many of them give the facility to right to choose the arbitrator. Make sure the attorney you hire has experience with binding arbitration and these clauses.
Settling Outside of Court
Many Michigan wrongful death cases never actually reach the trial level as many skilled attorneys are able to negotiate a beneficial settlement with the other party before packing your bags and heading to court. Since wrongful death cases carry such an emotional burden for both sides involved, many defendants choose to settle the case to avoid the media and the resulting publicity of a wrongful death lawsuit. This can be especially true if the Defendant is a public entity like a police department or municipality. However, these public figures often carry governmental immunity which can be difficult to overcome
When you and your team are deciding whether or not to accept a settlement either before, during or after the case has been brought to court, you can think about these points before making this tough decision:
- Has the attorney completed their due diligence and are they able to put a value on the damages in the case?
- How long with the litigation take based on the location and court involved?
- What are the prospects for a full recovery while the case is pending and how will that affect a jury decision?
- Are there similar cases that can be reviewed to determine a likely range of outcomes?
- Is there a likelihood of unfavorable publicity for either side that could be avoided by a quick settlement?
- Will a speedy settlement cost the Plaintiff in terms of future dollars that will be lost?
- What are the resources (money) available to both parties to fight a long battle in the courts?
- Are the parties able to collect any judgment that is received after a full trial?
A recent study was conducted by Courtland Consulting that determined the effectiveness of Case Evaluation and mediation in Michigan Circuit Courts. Some of the relevant points for families going through a wrongful death case are as follows:
- Courts are widely using case evaluation due to the mandatory nature of the court rule, however, some courts are moving away from this toward a greater use of mediation. It seems that attorneys are increasingly willing to engage a mediator to settle cases.
- The use of one or both of these ADR processes greatly increased the percentage of cases in which a settlement or consent judgment was achieved. Interestingly, the effect was very strong for cases that used only mediation.
- Where mediation was held, nearly half of the cases were settled “at the table”. Even more encouraging is that ultimately 72 percent of cases that went to mediation were disposed through a settlement or consent judgment and without later using case evaluation or going to trial.
- The use of case evaluation significantly increased the length of time a case was open. Using mediation alone had no significant effect on time to disposition compared to cases that used neither of these ADR processes. This could be due to the fact that most case evaluations are held after discovery and even after motions to dismiss have been filed and heard by the trial court.
- Mediation was faster than case evaluation for disposing cases because it was implemented sooner and because cases closed more quickly following mediation. One of our observations of handling so many case evaluations is that the communication process AFTER case evaluation is zero. You do not want to give away your position to the other side as there are sanctions attached to accepting or rejecting the award. We have also seen a shift to mediation in family law cases where the communication between the two parties is enhanced due to the skill of the mediators and the increase in mediation training being offered throughout the state of Michigan.
- Although mediation initially is a more expensive option for litigants, the study found evidence that it can ultimately reduce their overall costs.
If you have a family member that was killed by the negligence of another, you deserve an attorney that not only knows that options to resolve your case without a painful trial, but can effectively utilize these tools to maximize your recovery and reduce costs.
Contact Ford & Murphy PC for your FREE Michigan Wrongful Death consultation. Call (269) 342-9900