Alternative Dispute Resolutions: Mediation & Arbitration Explained

Not every personal injury case needs to go through litigation. Sometimes, both parties in a personal injury lawsuit would rather come to a settlement through what’s known as “ADRs”, or Alternate Dispute Resolutions. There are two types of ADRs – “Arbitration” and “Mediation”.

Arbitration

When two parties at dispute cannot come close to an agreeable resolution, arbitration may present a better means of resolution as opposed to going to trial. “Binding” arbitration is when an unbiased third-party of authority meets with two at-dispute parties to come to a resolution outside of trial. The arbitrator acts somewhat like a judge and jury (usually an expert in the field of dispute resolution, and sometimes an actual judge or lawyer) . They will listen to witness testimony, review evidence such as documents and photographs and make a final resolution. Since this type of arbitration is “binding”, the decision is final and both parties must abide by it. “Non-binding” arbitration does not require either side to abide to the arbitrator’s decision, but is moreover used as a guideline.

The Pros of Arbitration

Choice of “Judge” – Whereas in litigation, individuals cannot choose their judge/jury, in arbitration, both parties agree on an arbitrator, and this arbitrator may make the dispute less stressful for that reason
Quicker than Trial – Arbitration is a far faster means of resolution than trial for more than one reason – one specific reason is that there is no wait for a jury trial, which typically takes 9 months to a year due to backlog court systems already burdened with other cases
Less Expensive than Trial – It is far less expensive than a trial because the rules are much more lax and there is no need to hire experts (ie. accident reconstructionists, economists, doctors) – expert testimony can be presented to the arbitrator in the form of a document or package of documents such as medical records, photos, witness reports, etc.
Confidentiality – Generally, the arbitrator’s decision is non-public or confidential whereas a decision made through litigation may not be – some may prefer their case be kept confidential to a degree

The Cons of Arbitration

No Chance for Appeal – Once a decision has been made, even if you don’t agree with your award or believe it to be erroneous, there’s no way to appeal – this can be a pro (by making the process quicker) and a con (since the decision, even if one party disagrees, cannot be appealed)
Decision is Final – Your fate is in the hands of one person, as opposed to numerous people, who may actually make a decision in your favor

Mediation

Mediation is another form of ADR. Mediation is a “non-binding” discussion wherein a mediator listens to each party’s position and makes recommendations as to how the case should be resolved. “Non-binding”, in other words, means that parties do not have to agree to the mediator’s recommendations. Mediation occurs mostly between two parties who understand that compromise is necessary to bring their case to a close. It’s the mediator’s job to help both parties come to an agreement and decision pertaining to the outcome of the case, whereas in arbitration, the agreement is made by the arbitrator. A mediation is more along the lines of a negotiation whereas arbitration is more akin to a trial.

The Pros Of Mediation

Cheaper and Quicker – In the understanding that time = money, mediation can be a much more cost-effective alternative to trial – many of the best personal injury lawyers are extremely busy, and convening schedules between them, scheduling depositions and trial dates can be difficult and mediation can dispense with these procedures and move the case to a quicker resolve
Confidentiality – While trials can be public, mediation can be confidential – for those of us who would prefer our cases be confidential, mediation can be a good ADR to trial
Control – Whereas in a trial, the judge or jury holds control over the verdict or settlement, in a mediation, the two parties are at liberty to come to a compromise or fully disagree with the mediator’s suggestion
Preservation of Relationship – In the case where the two parties had a relationship before the dispute occurred, a mediation is a chance for those two parties, who may understand each other’s circumstances, to maintain good standings between one another after the case is resolved
Expert Mediation – Mediators are trained to work in difficult scenarios to stay neutral and propose agreeable resolutions that may have not been presented prior to mediation

The Cons Of Mediation

It Could Be a Waste – If the two parties cannot come to a mutual agreement, then they’ve wasted both time and money on the mediation
When Confidentiality Isn’t What You Want – Whereas in family matters, confidentiality is usually preferred, sometimes you may not want your ruling to be confidential. For example, if you’re in dispute with a party who has endangered you in ways they’ve continually endangered others, and if your ruling is self-satisfactory, you might want others to know about this so they do not experience the same
Compromise – You will have to make some type of compromise, whether it’s the amount of money you are hoping for or any other aspect of a case, there is always some form of compromise