I just completed my first-ever arbitration of a wrongful death action. The case was brought by the widow and the estate of a man who died from metastatic colon cancer that should have been diagnosed by the deceased’s internist while it was still at an early, curable stage. We won’t have the decision from the arbitrator for several weeks, so I can write objectively about the process unbiased by an excellent result or an unfavorable decision.

Many people might want to know exactly what is arbitration. They may have heard about binding arbitration to determine the salary of disgruntled star athletes, or arbitration to settle disputes between corporate management and a labor union. Arbitration has long been used in the labor setting and has become familiar in the world of professional sports. The process is much newer and still being carefully assessed by lawyers, in the context of personal injury cases.

Arbitration can be almost whatever the parties to the arbitration want it to be, unless the arbitration format is required by law. Essentially, arbitration is a hearing before one or more arbitrators, in which evidence is presented in the form of live testimony, deposition transcripts, and exhibits, and a decision is rendered by the arbitrator. Depending upon the agreement of the parties, arbitrations can be binding; i.e., the decision of the arbitrator is final and can be enforced if necessary, by a court, or non-binding and advisory only.

Every person seriously injured by the negligence of another has the right to a trial by jury. If both parties agree, the case can be tried in court before a judge with no jury – those are known as “jury-waived” cases. Jury-waived cases take place in the same court houses and same courtrooms as do jury trials – everything is pretty much the same, albeit a bit less formal – except ther is no jury. The judge renders his decision, which can sometimes take many months, and which is subject to appeal as in any jury case. Jury-waived cases are somewhat easier to schedule than are jury cases, but are still subject to the vagaries of the court calendar, which may be affected by shortages of personnel, as well as the criminal docket. Criminal cases, because of the constitutional right to a speedy trial, take precedence over civil matters.

When lawyers agree to arbitrate a personal injury case, they hire an arbitrator – most typically a retired judge – who works for a mediation/arbitration company. The arbitrator hears evidence very much as he would have done when sitting on the bench, accepts the legal briefs of the parties, and renders a written decision. It is up to the parties whether or not they want to retain their right of appeal. Many parties waive all appeals, meaning the decision of the arbitrator is final and non-reviewable.