Mediation and Court Settlement Conference Pros and Cons

This video features Michele S. Mirman, a Medical Malpractice attorney based in New York.

New York Injury Lawyer Explains the Processes

Video Transcript:

Michele Merman: 

The advantage is that you will have an opportunity to hear, firsthand, what the other side has to say about your case, how they feel about it, what they think about it, and of course, what they're offering.

Tom Mustin: 

Not all cases make it to trial. So, what should you know about other ways to resolve your case? Well, we're gonna find out, right now, on this episode of Ask The lawyer. Hello, I'm Tom Mustin with AskTheLawyers.com. And my guest is New York City Attorney, Michele Merman. And I wanna remind you right at the top now that if you'd like to ask Michele any questions about one of your situations, just go to AskTheLawyers.com, click the button at the top that says, "Ask A Lawyer" and it will walk you through the very simple process, or of course, you can always call the phone number that you see at the top of the screen there. Michele, great to see you. Thank you for joining us today and helping us out.

Michele Merman: 

Good to see you too.

Tom Mustin: 

So let's start with a little vocabulary here. When we talk about a mediation, how is that actually defined in the eyes of the law?

Michele Merman: 

A mediation is a voluntary meeting between attorneys, usually with a third person who acts as a judge between the two of them. Not necessarily a real judge, it can be a lawyer, it could be somebody in business who tries to resolve the issues and bring about a meeting of the minds.

Tom Mustin: 

Okay. Good answer. So what is a court settlement conference?

Michele Merman: 

Well, when you bring a case in court, the court, at any time, can ask the parties to come to court and see if the issues can be resolved. It usually happens at specific times during the lawsuit. Specifically, once a case is put on the calendar. Parties can write to the court, or call the court and ask for settlement conferences, but again, it's a time where the court gets the parties together and tries to find out whether they're... The issues can be resolved and the case can be settled.

Tom Mustin: 

Okay. So what's the difference between the two? Between the mediation and the court settlement conference?

Michele Merman: 

Well, the main difference is that a voluntary mediation is something the parties agree to, and then go out and hire a mediation company, and they pay for that, and they decide between the two of them, which mediator they want out of all the mediators that that particular company may have. When you have a court settlement conference, it's whatever judge is assigned to the case. More recently in New York City, there is a possibility for a mediation. There are special mediators that the courts have appointed, and you can request that, the first half an hour is free, and then after that, if you wanna continue, the parties pay just like with private mediation.

Tom Mustin: 

Okay. I'm sure there are advantages and disadvantages to both of them. Can you talk about that a bit?

Michele Merman: 

Well, the advantages and disadvantages are the same for both. The advantage is that you will have an opportunity to hear, firsthand, what the other side has to say about your case, how they feel about it, what they think about it, and of course, what they're offering. There's no real disadvantage as far as I see. The only thing that could possibly happen is that your case is not settled.

Tom Mustin: 

Right. Well, so what are the circumstances where you would advise one over the other?

Michele Merman: 

There are many mediation companies that have really excellent mediators, and a lot of insurance companies like to go to those companies because of the mediators, many of them come out of the defense attorneys from the courts. When you have a mediation in court or a court settlement conference, you are not choosing the person that you're having the settlement conference in front of. It is the judge, or it is his law secretary or her law secretary, or one of the court-appointed mediators.

Tom Mustin: 

Okay. Are they both binding?

Michele Merman: 

No, a mediation is not binding, except if you do indeed sign a paper that says that you accept the settlement and the insurance company or the insurance company lawyers sign that paper as well. That becomes a contract, the binding agreement.

Tom Mustin: 

Okay. So can the case be dismissed at the settlement conference?

Michele Merman: 

No. It cannot be dismissed at a settlement conference. There has to be a motion by one of the parties for dismissal. A judge can't automatically say, "Gee, I don't like this case, and I think I'm going to dismiss it."

[chuckle]

Tom Mustin: 

Well, great to talk to you. Nice answers, and I will look forward to chatting with you again.

Michele Merman: 

Same here. Thank you.

Tom Mustin: 

And that will do it for this episode of Ask The lawyer. My guest has been New York City Attorney, Michele Merman. If you wanna ask questions about your situation, go to AskTheLawyers.com, click the button at the top that says, "Ask A Lawyer" and it will walk you through the very simple process. Thank you for watching. I'm Tom Mustin for AskTheLawyers.com.

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