Uncovering Client Needs through Mediating Attorneys’ Fees Disputes

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Attorneys’ fees disputes are so common that many states and bar associations provide free or low-cost mediation services to help attorneys and their clients resolve disputes regarding legal fees.  The mediation process is voluntary and can help the parties resolve their dispute without need for any further legal action.

While fee disputes may appear to be about money, there are often other issues lurking around such disputes.  A client may not have been satisfied with the attorney’s services or felt that he or she was disrespected in some way.  He or she may have had an impression of the cost of litigation and was then surprised by a large legal bill.

Both parties have the possibility of benefiting from mediation.  This gives the parties the opportunity to each speak their peace.  A client may not have realized some of the things that he or she would be charged for and an attorney may reference the fee agreement that spelled out such charges.  A client may feel that an attorney did not sufficiently communicating about progress in the case and associated costs.  In some instances, the client may have discharged the attorney and feels like the fee is undeserved.  A lawyer can explain his or her point of review in a respectful manner and potentially sidestep any larger concerns, such as an ethical complaint being made against him or her.

Mediation also provides for the possibility of the parties coming up with their own solution.  This may include the lawyer writing off certain charges or offering a discount if the bill is particularly large.  It could also mean the client offering to make monthly payments on the amount owed rather than facing legal action by his or her own attorney.  A significant benefit of mediation is the ability for the parties to reach their own reasonable solutions.

January 16, 2017

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The Difficulties Involved in Negligence Cases

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Negligence cases are some of the most commonly tried cases.  A car accident, mistake made by a doctor or a defective product can quickly lead to litigation.  However, ADR is often much better at resolving cases involving negligence.

In negligence cases, the plaintiff has the burden of demonstrating the elements of the case.  These elements include showing that the defendant breached a duty of care that it owed to the plaintiff, this breach caused the plaintiff to suffer some harm and this harm resulted in some type of measurable damage to the plaintiff.  In some cases, the first element is in question.  The defendant and the plaintiff may be complete strangers to each other.  In some cases, a certain degree of care is expected, such as all motorists obeying traffic laws.  However, in other cases, the duty of the defendant is not as clear.  He or she may have owed very little duty to the victim who was later injured.

Causation can also be difficult to prove.  If the plaintiff has a pre-existing injury, it may be argued that the plaintiff’s injuries were already in existence and no new injuries occurred.  Sometimes more than one defendant is involved in a negligence case, and the plaintiff may be unclear on which party’s conduct resulted in his or her injuries.  Defendants may try to minimize the potential recovery of the plaintiff by alleging that the injuries are exaggerated.

Negligence cases can also be difficult for defendants.  Juries often have little sympathy for people who have acted carelessly or businesses that try to shy away from their responsibility.  To minimize the potential for a bad outcome, many parties involved in a negligence case decide to settle their claim, often with the help of a trained mediator who can explain the risks of litigation.

Using Mediation in the Medical Negligence Context

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Medical negligence cases are often complex in nature, typically requiring the testimony of a medical expert to substantiate the plaintiff’s claims.  The legal and factual issues are often complex.  These factors mean that there may be additional issues in dispute, which tends to make the case longer, more complicated or more expensive for both parties involved in the process.

Another complication of medical negligence cases is that multiple defendants may be part of the case.  This means that each defendant may be represented by his or her own attorney that is looking after only his or her own client’s interests.  In this manner, the defendants may argue with each other and attack each other, which may only drive up the recovery for the plaintiff.

For parties that want to minimize the potential for a negative outcome, mediation is a reasonable solution.  Mediation can help minimize the costs associated with such lawsuits for both parties.  When such hefty costs are involved, the stakes are greater.  However, mediation can help level the playing field.  It may also allow a defendant to offer more in a potential settlement since it will not have to shell out as much in legal fees.

Additionally, when multiple defendants are part of the case, it can be difficult to apportion fault between the defendants.  A jury may not be sympathetic to a particular defendant and find this defendant primarily liable for the injuries.  In mediation, the parties can attempt to reach a formula that apportions the guilt in an equal or fairer way.

Mediation provides an opportunity for the parties to come together and resolve their case on their own terms.  This may include a formal apology by any defendant that may have made an error that resulted in the plaintiff’s injuries.  It may also provide a settlement figure that all of the parties can agree to and live with.

January 9, 2017

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