Law office of Craig Wilkerson - January/February 2020

ROCK HILL 1050 College Avenue Extension Rock Hill, SC 29732 Phone: 803-324-7200 FORT MILL 852 Gold Hill Rd. Suite 102 Fort Mill, SC 29708 Phone: 803-396-5200

LANCASTER 103B South Catawba St. P.O. Box 477 Lancaster, SC 29721 Phone: 803-289-7202 UNION 209-B N. Duncan By-Pass Union, SC 29379 Phone: 864-466-5170

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The Carolina Advocate

January/February 2020

Ready to Jump Into the Ring The Shortcomings of Mandatory Mediation

A few years ago, South Carolina made alternative dispute resolution (ADR) mandatory in all 46 counties. ADR methods like mediation can resolve cases outside of the courtroom often in less time and at less cost to everyone involved. In mediation, a mediator (often an attorney or someone else with extensive experience in the type of law being discussed) facilitates communication between both parties. Unlike in litigation, a mediator doesn’t make any decisions but assists both parties in coming to an agreement. If both parties cannot agree, the case will move forward to litigation. To be honest, when South Carolina made ADR mandatory, I had my doubts. I didn’t think mandatory mediation would work. Mediation is a great method for resolving a case when both parties go into it willingly, but it only works if both parties are on board. Well, I saw pretty quickly that my skepticism was misplaced. Mandatory mediation has been a huge success for South Carolina. It’s reduced caseloads by 90% and resulted in most cases being resolved without the need to go to court. The change looked like it was saving everyone time and money — not to mention the emotional toll of going to court. However, over the last several months, I’ve also noticed an unintended outcome of the ADR mandate: Several insurance companies have

taken the lead in bringing more cases to court. In mediation, they’ll make an impossibly low settlement offer, knowing it will be rejected and the case will go to trial. Imagine I hit your brand-new F-150, causing severe damage. I offer you $500 to settle things. We both know that’s not even close to covering the damage. Do you take my offer, or do you take me to court? Nobody wants to go to court — not the clients, not the lawyers, and not even the insurance companies. What it seems like these insurance companies are banking on, though, is that the shift to mandatorymediation has a lot of lawyers out of practice in going to trial. Since cases are getting resolved in mediation, attorneys don’t have to go to court as often. It’s a benefit in most cases, but it’s also a drawback if you are a client who needs someone to fight for you when you’re being offered nowhere near what you deserve. It’s the client who suffers. While the courtroom isn’t anyone’s first choice, sometimes it’s necessary to show a company you won’t back down. When that multimillion- dollar company shows up to mediation and offers you no money, they need to be called out. If you find yourself on the receiving end of a lowball offer from an insurance company, you want an attorney who will call their bluff. No

one wants to be in court, but you need a legal team who’s prepared to pursue the case and fight for you when you’re being offered less than you deserve. In the coming year, based on what I’ve been seeing, I’m expecting more insurance companies to make it harder to settle a case in mediation. If you’re faced with that, know that you deserve an experienced trial attorney. At our firm, we pride ourselves on our extensive trial experience. We are not afraid to take insurance companies to court when they lowball our client. We’re ready to jump into the ring to secure what you’re owed.

–Craig Wilkerson

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