In personal injury cases, every plaintiff has a right to a jury trial and as such is best served by an experienced trial lawyer. However, before a case gets to the actual courtroom, there are several ways for that lawyer to get the case resolved to the benefit of the injured plaintiff. Mediation and Arbitration are two forms of “alternative dispute resolution”, as they provide an alternative method of resolving a case before it is decided by a court or a jury.
What is Mediation?
Mediation is an informal process that will generally take place in a neutral location, and can sometimes even be done virtually. In mediations, the parties agree on a neutral person, also known as a mediator who is often a lawyer or retired judge, to help facilitate the resolution of a case.
The goal of a mediation for the injured party is to show why they deserve a certain amount of money based on compensable injuries, and the goal for the defendant and/or their insurer is to demonstrate why a plaintiff may be owed less than what they are requesting. The mediator does not decide how much the injured plaintiff is entitled to, but assists the parties in reaching agreement on that figure.
How does Mediation Play a Role in Personal Injury Cases?
During a mediation, the parties often present their sides of the case. The plaintiff’s lawyer presents evidence of the defendant’s negligence and the damages suffered by the plaintiff. The defendant’s attorney and/or insurance company, in turn, presents their case, either disputing liability or contesting the amount of the damages, or both. The presentation of the evidence by a skilled trial lawyer, even to an insurance company, can help the mediator resolve the case in the plaintiff’s favor.
It is important to note that mediations are generally not binding upon the parties. If either party is not satisfied with the offers made at the mediation, they still have the option to continue litigation or go to trial. And importantly, what happens at mediation is strictly confidential and can never be used against either side in a courtroom.
See “The What, Why, Who and When of Mediation in Personal injury and Wrongful Death Cases” for more information on mediations.
What is Arbitration?
Arbitration is a form of alternative dispute resolution which involves the parties agreeing to have their case heard by an arbitrator of the court. Arbitrators are used to actually decide the case, rather than help the parties negotiate a settlement.
Arbitrations are essentially privately held trials, with one or more agreed upon arbitrators deciding the case. Both parties present evidence and testimony, and make legal arguments, though the process is often less formal than a traditional courtroom trial. Because an arbitration is generally binding and involves the presentation of evidence, it is again important for the parties to have experienced trial lawyers presenting their case.
How does Arbitration Play a Role in Personal Injury Cases?
Arbitration provides some advantages, depending on the case. It can often provide an avenue for faster resolution than trial in the court system, and is generally less expensive then a full-blown civil trial. In some personal injury cases, such as uninsured/underinsured motorist claims, Massachusetts law requires arbitration when the insurer and insured fail to reach an agreement.
According to General Law-Part I, Title XXI, Chapter 152, Section 10B, the parties will abide by the findings and award of the arbitrator which shall be final and binding. The outcome of the arbitration also identifies all costs which may be payable and which party is responsible for making such payments.
Mediation vs. Arbitration in Personal Injury Cases
Mediation and arbitration both allow for parties in a personal injury case to resolve their conflicts and issues outside of the courtroom in a private manner. They should be viewed as useful tools to resolve certain cases, but are not a replacement for the right to a jury trial. Your lawyer will advise you as to when and whether to attempt these forms of dispute resolution.
SUGARMAN attorneys have broad experience with mediations and arbitrations as part of their personal injury practice. If you or a family member has been injured by the fault of a corporation or individual and wish to speak with one of our attorneys, please fill out a Contact Form, call us at 617-542-1000 or e-mail .