Many personal injury claims are suitable for alternative dispute resolution. If utilized properly and with right type of claim, ADR can be the important in securing the just, speedy, and inexpensive determination of the claim.
I. MEDIATION
Mediation can be used to resolve personal injury claims. Mediated personal injury claims generally have three characteristics.
The claimant typically is inexperienced in resolving personal injury disputes.
The negotiations usually only involve the distribution of funds from one party to the other.
The issue being mediated is largely subjective.
Liability is typically stipulated to by the parties before entering into an agreement to mediate a personal injury claim. In addition, the issues of who pays for any alleged damages is usually established before mediation. Because of this, the defendant frequently is not present at the mediation session. The plaintiff, the plaintiff’s attorney, the defendant’s attorney and an adjuster from the defendant’s insurer can then focus on the issue of damages.
Because the mediation involves a claimant who is provably involved in the only lawsuit, the claimant has been called upon to evaluate and the insurance representative may have handled hundreds of similar cases, the mediator is challenged to bring some balance to this playing field. For this reason, it may be beneficial for the plaintiff to be represented by an attorney.
The distributive nature of personal injury disputes requires the mediator to determine how to facilitate give-and-take when the claim involves only how much the defendant will pay and how much the claimant will accept.
The subjective nature of the personal injury dispute involves the claimant’s pain and suffering. The mediator is challenged to find suitable criteria that will help the parties place an acceptable value on pain and suffering.
The mediation session usually begins with a joint session at which both parties give a brief overview of the issues and the parties’ arguments. The mediator may then caucus separately with each party to discuss each side’s concerns.
At the mediation session, the plaintiff may present a settlement package, including all medical records and billings, as well as other records of special damages, claimed so that the mediator can have access to the records as the case is being discussed.
It is important for the mediator to establish communication and rapport as soon as possible. Although distributive interests make up a large part of the personal injury mediation, the mediator should help the parties to identify the other interests involved. These interests may include the desire for an admission of fault or an apology.
II. ARBITRATION
An unresolved issue of liability often precludes the use of mediation and requires the use of binding arbitration. Cases involving substantial medical expenses with no objective finding of injury and cases involving minor impacts are often more suitable to arbitration due to the defendant’s reluctance to accept the claim or the extent of the claim.
Initially, the parties enter into a written arbitration agreement, establishing the procedural rules, rules for conduct of the hearing, , powers of the arbitration, enforceability of an award, method of selection of the arbitration hearing the parties present material evidence and cross-examination opposing witnesses.
Contact KEROBYAN MEDIATION to learn more about the process of the procedural steps, or visit https://www.adr.org/ArbitratorSelection to select an Arbitrator that best suits with the type of claim you have.
