Parties who are injured because of car accidents, slips and falls, defective products or other accidents may decide to litigate their case.  The defendant or the victim’s legal counsel may recommend the process of mediation to defray some of the costs involved in litigation and to speed up recovery of financial compensation.  Some of the following factors may impact the willingness of the parties to settle the case in mediation:

Expectations

It is not uncommon for injury victims to have an outlandish idea about the value of their case.  They may have heard news stories where multi-million dollar verdicts were issued.  However, this is not the norm.  Likewise, an insurance company may believe that it will prevail on a particular claim only to discover later that a jury holds its insured responsible.  If both parties enter mediation with a realistic expectation regarding the potential value of the case, they will be more likely to settle their claim.

Worst Case Scenario

It can also be helpful to the parties to consider the worst case scenario.  For the victim, this may be to recover nothing on the case.  For the defendant, it may be to receive a judgment against it for a sizable amount.  This can help the parties determine whether it is in their best interest to settle the case or to take a chance with a trial.

Recent Decisions

The parties may consider recent decisions made in the same venue to try to predict how a judge or jury may rule in a particular case.  It may also look at how similar issues were decided in recent cases, such as questions regarding causation or contributory negligence.

There are four basic elements to a negligence claim.  These and possible defenses to them are discussed below.

Duty

This element requires the victim to establish that the defendant owed the defendant a certain duty of care.  This may be due to a relationship between the parties, such as doctor and patient or product manufacturer or consumer.  A defense to this element may be that there was not such a relationship between the parties.

Breach of Duty

The victim must establish that the defendant breached his or her duty of care.  This may be established by showing how the defendant’s conduct rose to the level of negligence.  In a car accident case, this may be because of violating a traffic law.  In a slip and fall case, this may be due to not inspecting the area for hazards.  Defenses to this element are often the most common.  The insurance company may try to say the victim contributed to the accident or that the defendant acted within the proper standard of care.

Causation

This element requires the victim to establish the link between the defendant’s breach of duty and the victim’s injuries.  For example, the defendant’s act of speeding may have caused him or her to collide with the victim’s vehicle.  The defense may argue that the injures were pre-existing or were caused by another factor.

Damages

The victim must show that he or she was injured.  The defense to this element may be that the victim’s injuries are exaggerated or were not incurred in the accident.

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.