Presenting evidence, retaining medical and nonmedical experts, traveling to and from court, and preparing witness and video testimony can make a construction premises liability trial an expensive and prolonged endeavor. Associated trial costs may make it more cost-effective and expedient to settle a case if a reasonable settlement can be negotiated.
If you have recently been offered a settlement, consult with an attorney to discuss your next steps. A lawyer could guide you through the process of negotiating a construction accident settlement and advocate on your behalf to help get you a favorable result.
Mediation in a Boston Construction Injury Settlement
A settlement agreement in a construction accident premises liability case can be negotiated at a formal settlement conference, known as a mediation. Mediation is a form of alternative dispute resolution, or ADR, and often takes place outside of the court system utilizing a neutral party, or mediator. Mediators can be senior attorneys, retired judges, or defense attorneys with experience representing injured workers, contractors, and insurance companies. The ADR process typically begins with the parties agreeing on a mediator and scheduling mediation with the selected mediator.
Confidential Mediation Memorandum
Prior to mediation, it is customary for parties to submit a confidential mediation memorandum and limited exhibits to the mediator to give them an understanding of the factual issues of the case, the legal issues being disputed, and each side’s view of the evidence. Mediation is commonly scheduled towards the end of a case once the discovery period has expired and evidence has been obtained by both parties.
Parties Involved in a Construction Accident Settlement Negotiation
The mediator will then have an opening session with all participants, including both attorneys, insurance claims adjusters, the injured worker, and possibly the injured worker’s spouse. Insurance adjusters and Insurance attorneys may have limited settlement authority, but they can contact home office or the claims office in the event that they need additional authority to reach a final settlement that day.
A representative from the workers’ compensation insurance company might be available via phone or email to negotiate lien reduction if that is what is necessary to resolve the case. There may also be a representative from a structured settlement company who could review different options with the injured worker to structure a proposed settlement that would earn tax-free interest over time.
It is of the utmost importance in such cases to agree to a mediator who is credible and competent. A capable mediator will speak with both sides privately during mediation and listen to each party’s position and perspective. Mediators can explain the legal risk to the general contractor or insurance company regarding their exposure if they decline to settle or discuss the impact of them begin responsible for significant restitutions if a jury reaches a verdict in favor of the injured worker.
Mediation can last a full business day; however, if the case is not settled at the end of the day, a second session might be scheduled or those involved might simply exchange phone calls afterwards. If the insurance company presents a final, best offer during mediation that the injured worker accepts, a settlement could then be agreed upon.
Cases Involving a Workers’ Compensation Lien
Cases involving a workers’ compensation lien must have any settlement reached at mediation approved by the judge in the court where the case is pending, which will be either Massachusetts Superior Court or the federal district court in Massachusetts, or by the Department of Industrial Accidents. At the end of the mediation, an initial settlement agreement drafted by the mediator, which the parties sign with the understanding that the defending attorneys will prepare a more formal release setting forth additional terms.
There are often issues that arise concerning the injured worker’s obligation to pay any potential liens that might be associated with the case, such as liens for Medicaid or Medicare benefits that may have been paid or could be paid in the future. Defendants in construction premises liability claim settlement can also ask for a confidentiality agreement as part of the settlement, which are often agreed to, provided that the confidentiality agreement is mutual among the parties.
Other Ways to Settle a Construction Accident Case
In construction accident premises liability cases, settlement agreements can also be negotiated among the attorneys themselves, bypassing the ADR process and the court’s involvement, depending on coverage limits, coverage issues, and the attorneys’ mutual rapport.
Settling cases helps injured workers avoid the risk of an unfavorable final outcome in court, but settling does not mean accepting whatever is offered. A skilled attorney can evaluate the facts of the case, the strength of the law, and the evidence to negotiate a settlement that will be beneficial to their client.