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You’ve hired a personal injury attorney to help you cover economic losses for you injury. He’s guided you through the process and mentions using an alternate dispute resolution rather than going to court. What exactly does this mean? What are the benefits of going this route?
Alternate Dispute Resolution refers to a growing trend in litigation whereby adversaries opt to have their disputes resolved by an independent party as opposed to the court system. It is especially relevant in personal injury law due to the lengthy court process and cost of litigation. Three main forms of Alternative Dispute Resolution are commonly used in personal injury litigation including motor vehicle accident cases. They are Mediation, Nonbinding Arbitration and Binding Arbitration. Each has their benefits and drawbacks.
Mediation is the process in which the parties to a claim or lawsuit meet with a specially trained mediator whose job is to review the case, discuss the issues and work towards bringing the parties to a mutually agreed upon resolution. This can usually lead to good results and I recommend it often.
The process is simple. Generally, the parties meet with the mediator in an office or conference room. First, the plaintiff, through his attorney, will present his version of the case stressing its stronger points. Next, the defendant will present their alternative version stressing their stronger points. After this, the mediator will speak to each party separately trying to find out how much the party is seeking to recover or willing to pay. Once the mediator gets an understanding of the case and each party’s belief of the value of the case, they will work to bring the parties to a meeting point. Depending on the mediator’s view he will usually have an amount he feels is fair and will work to settle the case within those parameters.
The mediation process can be grueling and stressful. I attended a mediation one time that lasted over eight hours. The case wasn’t even settled at the mediation. However, it was settled several weeks later. The mediation helped to get the parties within a certain range. But, it just needed a little time to pass for each side to realize that a deal could be made if each party bent a little.
I resolve about fifty percent of the cases I mediate either at the mediation or shortly after. The benefits of mediation are as follow:
The drawbacks to mediation are few but none-the-less worth mentioning:
Non-binding arbitration is, in my opinion, the least desirable form of
Alternative Dispute Resolution. It works similarly to a trial but is less formal. In this format, both parties agree on an arbitrator that acts as a judge and jury. A case is presented in a similar fashion to a trial but is done in a conference room with less formal rules. This makes it cost effective. You will not need to hire doctors and experts to testify as their reports are admissible at the hearing unlike in a trial where the experts have to testify at a cost of thousands of dollars a day.
The hearing is conducted much the same as a trial but in an expedited fashion. There are opening statements, presentation of witnesses and evidence and closing statements. The arbitrator decides the case by rendering a decision. Only If both parties agree to abide by the decision is it final. If either party balks at the decision, it is discarded. That is why I avoid this type of Alternative Dispute Resolution.
The benefit of this process, however, is that it can lead to a settlement because the arbitrator’s ruling, while not binding, is indicative of how the case may go at trial.
Binding Arbitration is similar to Nonbinding Arbitration with the exception that the parties agree to abide by the arbitrator’s decision as final. While this may be risky, it is often a great way to resolve a case quickly and cost-effectively. Usually, I will entertain this option on lower valued cases where the cost of trying will outweigh the benefit of any recovery at trial.
On the other hand, I would never suggest this type of resolution for a larger case. I am not comfortable with giving an arbitrator total control over a case when millions of dollars are at stake.
In general, Alternative Dispute Resolution has become increasingly popular as a cost-effective and faster way to resolve disputes. I would always recommend at least, exploring it as a possible means of resolving your case.
If you have a personal injury claim against another individual or entity, your personal injury attorney may be able to negotiate a settlement winning their insurer over the phone. If it’s obvious that you weren’t at fault for your injuries and that you are actively pursuing treatment, insurance companies may agree to a fair settlement that covers your injury-related expenses.
It’s also important to note that a trial is expensive. Place your trust in your personal injury attorney. They’ll have a well-defined idea of how your case may play out in trial. If they feel you may end up with less compensation by taking your case to trial, and that the settlement the insurance company is offering you is fair, they may suggest you take that settlement.
Mediation and arbitration, two forms of Alternative Dispute Resolutions, are becoming extremely popular alternatives to trial as well. It’s a much less expensive and less time-consuming process than a trial. A mediator will try to help facilitate an agreement on a settlement. However, decisions made in mediation are not binding. If an individual feels that the decision made in their mediation is not fair, they can still choose to seek further compensation through an alternative route, such as a trial. Arbitration is very similar to mediation. However, in an arbitration, the arbitrator’s decision on settlement is binding, the case is settled, and can no longer be taken to trial even if one or both parties feel the decision is unfair.
There may be a stigma that all personal injury cases will end up in trial. You may have a solid personal injury case and envisage having to continually be in court where a jury will determine the fate of your case over a potentially extended period. But this isn’t always true. Not all cases require trial. A majority of cases are settled through negotiations, mediation or arbitration. It’s also important to note that there’s no one particular type of case that ends up in trial. Many factors can play into whether or not your case ends up in trial.
There are times when you and your attorney disagree with the percentage of liability. The defendant’s insurer may claim that you are 60% liable for your injuries when you and your attorney feel strongly that you are only 20% liable and therefore entitled to more compensation for your losses. If an agreement cannot be made on liability, your case may require a trial.
Sometimes an insurance company will argue that an injury is not related to your accident. Say, for example, your personal injury claim is regarding a back injury from a car accident. However, you’ve had problems with your back in the past. An insurance company may deny any payout, claiming that your back injury was not connected to or exacerbated by your accident and therefore.
There are also instances in which you agree on liability, but the insurance company refuses to pay out the settlement you and your personal injury attorney are seeking for your losses.
In these scenarios, your case may require a trial in order for you to receive the full compensation you are entitled to. At Palermo Law, we go the distance for our clients, whether or not their case requires a trial. It’s important you listen and trust your personal injury attorney on the matter of whether or not you should consider taking your personal injury case into trial.