Many readers will have heard the phrase “alternative dispute resolution.” It is a hot topic today in the legal community. Alternative dispute resolution or “ADR,” is a general term for any of a number of methods to resolve legal disputes short of trial in a courtroom. The primary forms of ADR are mediation and arbitration. Arbitration is essentially a trial – generally with relaxed rules of evidence – before a privately hired arbitrator. The arbitrator is usually a retired judge or experienced litigation attorney. In an arbitration, the arbitrator hears and receives evidence, not unlike a courtroom judge or jury. He then renders a written decision within a few weeks after the arbitration ends. Arbitrations occur only if the all parties agree. They have the advantage of being less formal and often less expensive to produce than courtroom trials, and the significant advantage of being scheduled to the parties’ convenience. Although arbitrations have long been common in construction and some commercial cases, personal injury lawyers still tend to be wary of them, preferring to argue their client’s case before a citizen jury, rather than a professional arbitrator. Unless the parties agree otherwise, the decision of the arbitrator is binding on the parties.

Mediation is also a form of ADR that usually requires the agreement of the parties. Although some state and federal courts require mediation before a case is scheduled for trial, the majority of mediations in serious personal injury cases take place because all parties agree to it. The mediation usually takes place in a conference-room size office, and an additional small office for what are sometimes termed “caucuses.” As with arbitrators, almost all mediators in personal injury cases, are retired judges or lawyers with extensive experience handling personal injury matters. The parties split the cost of the mediation, which can cost in a range between $3,000 - $6,000, depending on its length.

A mediator does not decide a case. Rather, he hears the demands, concerns, and interests of the parties, as well as each party’s version of what a trial would look like, and then attempts to help the parties reach a mutually agreeable settlement. The mediator cannot require any party to settle, and any party can leave the mediation at any time. In the typical mediation, each side – through counsel in a serious personal injury case – makes a preliminary presentation, an overview of their case, and why their demand or offer should be accepted by the other side. Following the initial presentations, the mediator requests one side to go to the second office. For the rest of the mediation, the mediator shuttles back and forth between the parties, presenting positions conveyed to him by the other side, asking for responses, ideas for how the case may be settled, and any other information each party deems important. In the private “caucuses,” the mediator may probe each party to see if they have considered the weaknesses in their case, as well as the strengths, and what they expect will happen if the mediation is not successful. By the end of the mediation, the parties will either reach an agreement or fail to do so. Sometimes, a mediation may fail to result in a settlement, but may spark ongoing negotiations that does settle the case before trial. When no settlement is reached, then the case will be determined by a judge and jury.

The answer to the question in the title, “should I mediate my serious personal injury case,” is – “it depends.” As noted, there can be no mediation unless both parties agree. In some cases, the insurance company is so confident in their position – maybe wrongly so – that they do not want to attempt a settlement by mediation. Other times, the insurance adjuster in charge of settlement efforts, may prefer to attempt negotiation directly with the plaintiff’s counsel. Mediations can be very effective in cases in which pre-trial settlement is in both parties’ interests, but for various reasons, they have been unable to reach settlement on their own. In personal injury cases resulting in life-altering injuries, mediations almost never occur until after discovery is completed and a trial date has been set or is expected to be set in the near future.

Occasionally, an insurer and defense counsel will propose or agree to mediation, never intending to make a legitimate settlement offer. When that occurs, the plaintiff will have spent time and money, and achieved nothing but having given the defense a preview of his case. While I regard such conduct on a defense attorney’s part as unethical, and on an insurer’s part as bordering on fraudulent, there is little remedy for it. It is therefore important that plaintiff’s attorney attempt to gauge the seriousness of the insurer before agreeing to mediate a case. In the right case, mediation can assist the plaintiff in obtaining a fair settlement without the uncertainty of trial. It should be serious in most catastrophic personal injury cases.