Is Alternate dispute resolution right for my serious personal injury case?

In response to increasingly crowded court dockets, personnel shortages, and unacceptably long waits for trials, alternate dispute resolution ("ADR") has been increasingly used by personal injury lawyers. There are two types of ADR typically used in personal injury cases: (1) mediation, and (2) arbitration.

Mediation in personal injury cases requires the agreement of the parties. The mediation usually takes place in a conference–room size office, and an additional small office for what are sometimes termed caucuses. Mediators in personal injury cases are usually 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. He hears the stories and demands 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. In the typical personal injury mediation, the lawyer for each side 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 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.

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. The parties present live witnesses and relevant documents to arbitrator, who then renders a written decision within a few weeks after the arbitration ends. Arbitrations occur only if the all parties agree. One of the great advantages of arbitrations over Superior Court trials, is that arbitrations can be scheduled to the convenience of the parties. Precision scheduling eliminates a serious cost in personal injury jury trials paying for experts to either wait around or hold extended periods of time open because of the inefficiency of scheduling trials in court. 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.

The answer to the question in the title, is alternative dispute resolution right for my case, is it depends. Sometimes an insurance company adjuster or defense counsel will prefer to negotiate directly with plaintiff's attorney. Mediations can, however, be 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 considered in most catastrophic personal injury cases.

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