Medical Malpractice and Personal Injury Law Blog

Foregoing the Trial: Alternative Dispute Resolution

Posted by Charles Gilman | Jul 29, 2016 | 0 Comments

Personal injury cases are often contentious, with both sides disagreeing over the cause, extent, and liability of the injury involved. But in some cases, plaintiffs and defendants are able to work through legal disputes without entering a courtroom.

Alternative Dispute Resolution

Alternative dispute resolution (ADR) is a procedure that allows two parties to collaboratively decide the facts of a case and to come up with a joint solution. The two main forms of alternative dispute resolution are mediation and arbitration. Mediation is a process where both parties agree on a neutral, third party mediator, usually an attorney or retired judge, who helps facilitate a discussion and resolution between the two parties. Arbitration follows a slightly different process where each party brings their own arbitrator, both of which confer with a third party arbitrator to help resolve the case.

The biggest different between the two is a mediator does not have the final say in the case without the parties' consent and instead helps the parties come to an agreement. The main arbitrator does have the power to settle the case and decide on the award amount without the consent of the parties involved. Arbitration serves as a replacement for a trial, while mediation is a discussion and agreement between the two parties.

ADR is not always the best choice for a case. Both parties have to be willing to compromise and come to an agreement or the process will stall.

Setting Up Arbitration or Mediation

Before agreeing to an alternative dispute resolution, both parties should agree about:

  • Who will serve as arbitrator or mediator
  • How the arbitrator will be paid (usually split between the two parties)
  • The location and length of the ADR
  • Certain conditions of the ADR like award caps, evidence presentation, and which individuals will be allowed into the talks
  • Whether the ADR will be binding or non-binding. A binding decision means the arbitrator's or mediator's decision is final. A non-bind decision means that no final decision is made, but both parties get to see what kind of cases they have and decide whether a settlement or trial is the best option. Binding decisions cannot be appealed.

Both parties will also need to agree to continue the ADR until the dispute is settled.

The Process

Once both parties have agreed to all details of the mediation or arbitration, the case will begin. On the date of the ADR, both parties will be allowed to give an opening statement, a testament of evidence, and a closing statement. A mediator will help the two parties come to an agreement. An arbitrator will take a few days to make a decision about the case.

Trial or Alternative Dispute Resolution?

ADR is not the best option for every case. An experienced attorney can help you decide which process is best for your case.

About the Author

Charles Gilman

As managing partner and co-founder of Gilman & Bedigian, it is my mission to help our clients recover and get their lives back on track. I strongly believe that every person who is injured by a wrongful act deserves compensation, and I will do my utmost to bring recompense to those who need and deserve it.


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