Arbitration and mediation are effective tools that can help quickly resolve your injury case well before you’d ever see a jury. Arbitration is basically a less formal trial that happens outside of court. In place of a judge, a neutral arbitrator issues a decision after hearing the evidence and arguments from both sides.
Mediation is less formal than arbitration and involves parties working with a neutral mediator who tries to get the parties to come to an agreed upon resolution between themselves. Both arbitration and mediation can be binding or non-binding, meaning that an agreement or decision made in either process will be enforceable (binding) or non-enforceable (non-binding) by a court.
Below are the Top 5 questions injury victims ask about arbitrating or mediating their claims.
Arbitration clauses appear in contracts and can restrict your access to the courts. For example, if you are injured as a result of playing in an organized sport or at your local gym, you may be required to arbitrate your claim against the league if you signed an arbitration clause as part of the sign up process.
Usually injury cases do not go to arbitration unless the injury is subject to an arbitration clause, or the parties agree to arbitrate the claim. Many courts provide judicial and non-judicial arbitration programs that can be either binding or non-binding. Cases against hospitals and gyms are regularly arbitrated as these frequently require customers to sign agreements that include arbitration clauses.
While you may want justice for being injured, and you believe that part of getting justice is getting your day in court in front of a jury, a lawyer wouldn’t be doing their job if they didn’t attempt to disavow you of that notion. Mediation is an effective tool and a cost effective way to resolve any lawsuit. Mediation provides a certain resolutions that courts cannot provide. It’s like the adage says: “a bird in the hand is worth two in the bush.”
Having a lawyer represent you at mediation can be helpful for many reasons. Lawyers are trained to recognize the different negotiation strategies and can adjust their strategy during the session to more effectively reach a desired outcome. Additionally, lawyers know the law and can use their knowledge and experience to gain leverage, not just over the other party, but with the mediator. If a mediator believes your attorney is prepared and is good enough to win your case, even if there are significant problems (and there always are), the mediator will lean on the opposing party harder when it comes to discussing settlement figures.
This is perhaps the most popular question among injury victims across the board, regardless where there case is at in the process. The answer is always the same: it depends on several factors. Some of those factors include:
- the facts of the case
- the circumstances surrounding recovery
- the amount of medical bills, lost wages, and other financial losses
- the severity, frequency, and duration of your injury
- how a jury feels on the day when they are deciding how much to award
If your case doesn’t settle at mediation, or you are not satisfied with the result of non-binding arbitration, you will be able to litigate, or continue litigating your matter. So long as it’s non-binding, it’s probably a good idea to at least try mediation.
- Injured in an accident? Get matched with a local attorney. (Consumer Injury)
- Personal Injury Mediation: 5 Things to Expect (FindLaw’s Injured)
- How Long Will It Take to Settle My Injury Lawsuit? (FindLaw’s Injured)
- Arbitration & Mediation (ADR): Articles (FindLaw’s Learn About the Law)