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Month: March 2018

Settling the case: mediation and arbitration

If you have an insurance claim against your company, it is definitely in your best interest to come to some kind of settlement if it is possible. Sometimes, however, that simply cannot be done and a lawsuit is the only possible option.

That does not mean that negotiation is over, however. Courts in Florida require all civil lawsuits to go through mediation before proceeding to trial. In mediation it may make sense for the case to be referred to arbitration. These alternative dispute resolution procedures are an important part of the process, especially for insurance claims.

Mediation

The first step for any civil suit is always mediation. This is a process by which a court certified mediator assembles both parties and hears their sides of the story. They propose solutions and ways that the dispute can be resolved easily.

Mediation can take the form of a small, informal hearing or even look like a trial with evidence presented by both sides. It is entirely up to the mediator as to how it proceeds. The setting is informal and allows back-and-forth between the two parties.

Many cases settle in mediation, so the process is very much worth it. If they do not find a way to agree, one possible outcome is to have the parties agree to arbitration.

Arbitration

There are two kinds of arbitration – binding and non-binding. In a binding arbitration, both parties have signed that they will agree to the decision of the arbitrator, whatever it is. Non-binding, of course, does not have that agreement.

Arbitration is conducted by an expert in the field, or sometimes a panel of experts. It is also more relaxed than a full trial, but is more likely to have some structure and presentation of evidence.

Still preparing for trial

While the savings in time and money are very important, it is still critical to have a vigorous defense coming into mediation. You have to be prepared as if going to trial, which is the outcome if mediation and arbitration fail to produce an agreement.

That may sound like setting up for failure, but it is an important part of the process. The outcome is much more likely to be in your favor if it is clear that you are prepared to see the case through to the very end.

In all cases, it is important to have an attorney skilled in not only insurance claims but also the process of alternative dispute resolution preparing your case. Mediation and arbitration are indeed a much easier way to settle, but the outcome is always going to be more favorable the more prepared you are.

How much security is enough?

In the wake of several incidents involving mass casualties, many Americans have become concerned for their safety. Property owners of large, public spaces are increasingly being called on to tighten security and provide adequate protection to their patrons.

But what is expected? The law is open to changing conditions and times for a lot of reasons. But property owners in general are not always expected to take into account every potential risk to the public. It’s important to understand the potential liabilities all property owners have and how they can cover them.

Premises liability

Under Florida law, owners of any establishment or property that is open to the general public have an obligation to keep their patrons safe. The most common things which come under this are appropriate lighting, lack of trip hazards, and other elements of basic safety.

The general public also has a right to feel safe from criminal acts, too. Any potential threat to safety which can be “reasonably foreseen” or expected has to be addressed. This includes breaking up a fight in a bar, for example, before patrons are seriously injured.

A property owner can be held liable if three conditions are all met:

  • A person is injured or otherwise harmed on the property
  • The property owner failed to provide basic security to stop “foreseeable” incidents
  • The failure of the property owner to do so is directly related to the harm caused

Defense against charges of premises liability or “negligent security” is based on proving that just one of these conditions is not met. That is where the question as to whether a threat is “foreseeable” becomes important.

Mass casualty incidents

To date, lawsuits claiming negligent security have been unusual in the aftermath of mass casualty incidents. The defense that no one could have seen this coming is easy to make as everyone absorbs the horror of the situation. But as they become more commonplace and the public questions what security should be provided, it’s only a matter of time before a claim that such an event was “foreseeable” will arise.

One response to this is additional insurance being offered to cover these incidents. Such products are relatively new and the cost is still being weighed. Mass casualty events are indeed very expensive – the Pulse Nightclub in Orlando was destroyed and only was able to reopen in a different location.

Are other responses, such as increased armed security appropriate? Property owners need to review their situation individually as times change to determine if this is appropriate. A conversation with an attorney experienced in premises liability is certainly a good place to start if you have any concerns.