PERSONAL INJURY: Mediation & Arbitration

One of the more frustrating things about any case is the amount of time it can take.  Mediation and arbitration present an efficient and relatively inexpensive way to resolve many civil disputes.  Sometimes called ‘alternative dispute resolution’ or ADR, mediation and arbitration can speed things up.

Mediation

In mediation, disputing parties open by giving a brief introduction of their positions.  In a personal injury case, the injured person’s attorney summarizes how an accident happened and highlights the injuries.  Insurance company lawyers then poke holes in the case, showing any weaknesses.

The real work occurs when the mediator then separates the parties into different rooms.  The mediator goes back and forth, emphasizing the strengths and weaknesses of the parties’ positions, and uses reason to encourage the parties to achieve a resolution.  Mediation is not binding.  The parties can ‘walk’.  It takes time, patience and an open mind, but mediation often works.

Arbitration

In this forum each side presents its arguments to an arbitrator, who listens to the dispute and can ask questions left unanswered.  The parties offer whatever evidence they have, usually testimony and documents.  After the argument and evidence, the parties leave.  In time, the arbitrator issues a binding decision resolving the dispute.  Courts nearly always uphold an arbitration award barring outright abuse of the system.

Case Evaluation

In this less used forum, the parties explain their cases to a neutral case evaluator.  The evaluator then simply provides his or her evaluation of the case, usually a dollar amount.  Then it is fully up to the parties to decide what to do.

Why Mediation & Arbitration are Options

Mediation and arbitration can be extremely cost effective ways to approach settlement, especially in cases with expert witnesses.  Experts include doctors, engineers, appraisers or anyone else providing opinion testimony outside the realm of a lay person.

In the less formal ADR setting, strict rules of evidence do not fully apply, including the hearsay rule.  So, a written report by an expert may be submitted, at much lower cost than bringing the expert into court to testify in person.

Who Mediates or Arbitrates My Case?

ADR is often done by retired judges.  Experienced attorneys also offer ADR services.  ADR is supported by most courts.  In some, it is mandatory.  New Hampshire Superior Court rules require ADR and the Massachusetts court highly encourage ADR.

In addition to court referred programs, there are many private ADR providers.

The Sixth Amendment to the U.S. Constitution guarantees the right to a day in court in civil cases.  But, whether it’s an accident case, a business or other dispute, there are good reasons to spend the day at ADR instead.

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