Generally speaking lawsuits are commenced with the understanding that the claim might ultimately go to trial for adjudication. Statistically however, the vast majority of lawsuits are settled before trial. Statistics vary but somewhere between 70 and 90 percent of personal injury lawsuits are resolved before trial.
In order to prepare a claim for settlement it must be prepared as if it was proceeding to trial. Without the pressure of a trial date and the knowledge by ICBC that the claim can proceed to trial if it is not settled it is difficult to entertain settlement negotiations.
Negotiations can be entertained at any time and settlement can occur at any time and not just on the eve of trial. Generally speaking however claims are not ready to be settled until closer to a trial date as that is generally when all of the medical and expert reports are produced and available.
Negotiations can be conducted directly with an ICBC adjuster and often times they can result in a negotiated conclusion to the claim. In other instances it may be appropriate to proceed to Alternative Dispute Resolution which generally takes the form of mediation.
Mediation is a process whereby an independent and neutral mediator is hired by the parties to facilitate settlement discussions with a goal of resolving the dispute. A mediator does not have any power to enforce a settlement or to direct either party to pay or accept a settlement proposal. The mediator is solely for the purpose of focusing the parties in a structured way on discussing the claim with a view of trying to resolve it. Mediations can be very useful and effective in resolving litigated claims.
A request can be made for a Judicial Settlement Conference. This is similar to a mediation except rather than having a mediator a judge, in a courtroom, will hear presentations from the parties and a brief summary of their claim. A judge will provide feedback, guidance and his or her view on how the claim may be adjudicated if it proceeded to trial and what in their view, the likely outcome might be. It is nonbinding and the judge who presides over a Judicial Settlement Conference will not be the same judge who would preside over the matter should it proceed to trial. The judge presiding at the settlement conference may end up having a completely different view of the case than the judge who ultimately hears it at trial and their comments can only be taken as an indication of what may occur if the claim proceeded to an actual trial.
There are advantages to settling claims before trial. The most important one is that the injured party knows exactly what the outcome is going to be. When a case is resolved by settlement the settlement proceeds are generally payable within a few days and the claim is over. If the matter cannot be settled it proceeds to trial in front of either a judge or jury and at that point the ultimate resolution of the matter is left in the hands of someone other than the parties themselves and there is a risk that the result may not what was anticipated. As such resolving the claim by way of settlement removes that potential uncertainty.