Arbitration vs. Mediation

Aside from Settlement and Litigation, there is a fast-track approach in resolving a case. It may not be the best option for most cases, but for the most part, if you do not feel like litigating a case for five years until it eventually gets to trial, an ADR may be a good option in resolving a case. ADR stands for Alternative Dispute Resolution. Figuring out which option to use to resolve your claim may depend on two major factors—policy limits and the attorney’s confidence in resolving the matter during the ADR, which is solely based on experience. I also like to arbitrate or mediate a case if the client is stupid or greedy and does not want to take the offer that is on the table. Arbitrations and mediations seem more official to the client, and they understand better when an offer or an award is issued. That way, the blame falls on the result of the ADR. The main difference between arbitration and mediation is whether the decision is final or not. Or, in other words, binding. Arbitrations are binding, and the final award is final. Meaning you cannot appeal. With mediation, you can walk away or not accept the offer. Mediations are usually reserved for large value cases. If a case value is at least $100, 000, it is best to mediate the case to avoid unfavorable arbitration awards. That way, you can at least walk out if they begin to lowball offers and continue to Litigate if need be.

What is arbitration?

An arbitrator is an attorney who has many years of experience working with personal injury cases. Sometimes, there will be two arbitrators: a plaintiff arbitrator and a defense arbitrator. When your case is settled through arbitration, your personal injury claim will go before one or two arbitrators to settle the dispute.

After the discovery phase of your case expires, your attorney will be notified of the arbitration date and time.

What is the process of arbitration?

The arbitration will take place in a conference room in the superior court building where you filed your case. Plaintiffs and the defense will need attorneys who will submit packets to the arbitrators containing the following information:

•Police reports

•Medical records

•Photographs

•Testimonies

•Any relevant information to the case (Evidentiary Support)

If figuring out who is at fault when it comes to the collision is a focus point, then the plaintiffs will be asked for a testimony while under oath and have the attorneys and arbitrator ask them questions regarding the collision. The success of the testimony usually is based on credibility.

Example: If you’re uneducated and have a chronic drug issue or criminal issue, your testimony would be meaningless for the most part. On the other hand, if you are educated and have a professional career, your testimony would have more credibility. Especially if you are well-spoken.

My suggestion: Don’t use the word N**GA when describing a witness or defendant during a sworn testimony. It happens quite frequently in New York. Judges don’t like it, and neither does the jury if the case goes to trial. Don’t be an idiot. Try to be at least a little bit articulated and sound somewhat educated.

Once the arbitrators have heard the details of the case, both parties will leave the conference room, and the arbitrators will decide what the monetary value of the case is. The final decision will be sent to the plaintiff and defendant’s attorneys in writing. Both parties are able to reject the decision within 35 days, and the awards may be due in 14 to 30 days after the hearing has closed.

Arbitration vs. mediation: what’s the difference?

Arbitration and mediation are similar in the sense that they both have the same end goal in mind, which is settling your personal injury case. However, there are some significant differences that you need to understand when deciding if one is better suited for your situation than the other.

Mediation is a negotiation with a neutral third party, a.k.a. mediator, who is there to help both parties reach a settlement by helping with communication, obtaining relevant information, and finding the best options. Mediators are not there to find faults, make decisions, or issue orders. Often the mediator will meet with both parties separately and discuss the dispute, exploring possible ways to resolve the dispute, but in order to resolve the dispute, both parties must agree to a resolution.

Arbitration is binding, which means that the decision is final and there is no way to appeal a decision. Mediations on the other hand, is non-binding, which means that if the case doesn’t settle during the mediation, you can just walk away and try again and continue litigating. During the arbitration, both parties are given a chance to present their case to the arbitrator. Similar to a court, attorneys can question witnesses from both parties. The arbitrator has the power to decide the outcome of the case. The arbitrator can make a binding decision that means it cannot be appealed or a non-binding decision giving both parties a chance to challenge the end decision. A binding decision can be enforced the same as any other court ruling.

What are the advantages or disadvantages of arbitration for the plaintiff?

Advantages of deciding to venture down the path of arbitration when settling your personal injury case are it offers more privacy, is less expensive, and settlements are paid quicker and more efficiently than if you were to take your case to trial.

With arbitration, the rules aren’t as strict, and your legal team can have a say in who your arbitrator will be. You can also have your case settled and receive your award, if won, much quicker than going to trial.

If you lose in arbitration, you may be limited in your ability to appeal the case. For the most part, you can’t. If the arbitration is binding, it is final. However, if there are any clerical, typographical, or computer errors, the American Arbitration Association will allow an arbitrator to change the final award. If a change is wanted to the settlement from either party, they must request it within 20 days after the final award is sent.

This never happens in a personal injury case, but if the arbitration is somehow non-binding, you can apply for an appeal. If you feel that your case was not settled fairly, you can fill out a form called a Trial de Novo to request a new trial. If your request is approved, the arbitration will start over, and the former arbitration will be completely null and void. But in almost every case of all Arbitrations are Binding.

Having an attorney to help you navigate through the arbitration process will help ensure that your evidence is presented correctly and in a compelling way—you are more likely to win your settlement when you enlist the help of a professional personal injury attorney who has done a lot of arbitrations.