Most personal injury cases settle without the case ever going to court. Even when the cause of the accident is in question, it is standard for a lawyer to send a demand and try to negotiate a settlement. This is done because lawsuits can be risky, expensive, and take a long time to resolve.
If you have a pending personal injury case, you might have heard about mediation or arbitration. These terms may have been used by the insurance company, your own lawyer, or you might be simply doing your own research. Mediation and arbitration are tools that lawyers use to help get cases settled. They are considered as “alternative dispute resolution.” Alternative dispute resolution refers to any process that allows you to resolve your claim outside of an actual trial.
What Is Mediation?
For a personal injury claim, mediation is an informal settlement conference between you and the insurance company. A mediator is chosen by both parties; someone that is neutral and unbiased. The mediator will talk to each party about the pros and cons of all the possible outcomes of their individual situations. The mediator has no authority but gives advice and perspective to both sides. They can’t force either side to do anything or accept any offer.
Mediation is not a trial. You will not be calling witnesses to talk about your case. It is simply an opportunity to try to get both sides to agree to an amount of money to settle the case.
Mediation can occur in 2 different ways, pre-suit mediation, and court-ordered mediation. Pre-suit mediation is just like it sounds – mediation prior to the filing of a personal injury lawsuit. The goal is to settle the case and avoid having to go to court. This is voluntary and both parties must agree to do it. Pre-suit mediations can be very effective because the case will eventually have to go to mediation anyway. Experienced lawyers and the insurance companies know that they can save time and money by using this tool.
The second method for mediation is court-ordered mediation. It takes place after a suit has been filed. Mediation is required by law before going to trial. That means the mediation is not voluntary. What happens at a presuit mediation and court ordered mediation are the same. There is nothing different at all other than you have to go to the court ordered one.
The main benefits of mediation are cost and time savings. The average trial can take 33.6 months (nearly 3 years) from start to finish to resolve. The average mediation, on the other hand, can be settled in much less time. Most mediations resolve one way or the other in three hours or less.
What Is Arbitration?
Arbitration is more similar to a trial than mediation. It is not often used for personal injury cases except for rare circumstances. It will occur after a lawsuit has been filed. You should defer to your lawyer about whether arbitration is even an option for your personal injury case. Arbitration requires 1 or 3 arbitrators who listen to the parties and render a decision as to the outcome. In the case of 3 arbitrators, each party chooses an arbitrator, and the third arbitrator is agreed upon jointly. There are two types of arbitration: binding and non-binding. The decision from binding arbitration is final and cannot be changed. The parties must abide by the decision, just as if the decision was given by a judge or jury. In non-binding arbitration, the decision is not necessarily final, it is simply a recommendation about what the result of the case should be.
Mediation, Arbitration, or Trial?
Every case and situation is different and there are multiple variables that should be considered. An experienced personal injury attorney should help you make this decision. While mediation and arbitration can be a useful tool, it is not always the best course of action to resolve your personal injury claim. After reviewing your particular situation and claim, a knowledgeable personal injury attorney can help you decide if it is worth pursuing resolution through the court and a trial.
Ask Your Personal Injury Attorney About Mediation and Arbitration
If you have a pending personal injury claim, defer to your lawyer about what strategy is the best for your case. Every injury claim is different. Feel free to ask questions about the different options that are available to you. Don’t be shy. Your lawyer will not be offended if you ask these simple and straight forward questions.
Personal Injury Attorneys McQuaid & Douglas
We have mediated and/or arbitrated countless cases over the years. For over 60 years our firm has been successfully helping people across Florida who have been injured due to someone else’s carelessness. We have been nationally ranked for decades by US News and World Reports as a Tier 1 law firm, which is the highest rank that can be received. Sean McQuaid and Jonathon Douglas are available to answer any questions that you may have about an accident claim.
