October 29, 2016

By: Jonathan J. Russell, Esq.

At Drake, Hileman & Davis, we realize that if you have been injured in an accident, your ultimate goal is not to spend anxious days in court trying to prove your case to a jury of strangers. Rather, you want to be made whole for the injuries you have suffered due to someone else’s fault. In our system of justice, the only remedy a court can provide to an injury victim is money, hopefully an amount that fully compensates you for the injuries and losses you have sustained. But there are other nonlitigation alternatives that can also assure that you receive full compensation, often at less cost to you in terms of stress, anxiety and money. Even though we lawyers enjoy the opportunity to use our lawyering skills in open court, you have little interest in being caught up in a grueling trial. What you really want is to be compensated for your harm. Since our job is to represent our clients and keep their interests paramount, we strive to keep our client’s goal of full compensation our top priority.

As a personal injury case approaches trial, both sides have incentive to settle, due to the uncertainty of a jury trial. In an effort to manage this uncertainty, the parties to the lawsuit often agree to an alternative dispute resolution process such as mediation or arbitration. Parties do so in order to replace a very unpredictable court system with a more predictable settlement system that affords the parties greater control. In recent years, fewer personal injury cases have gone to trial. Many more are being settled via various methods of alternative dispute resolution. Your lawyer should be aware of this trend and be equipped to take advantage of it.

One form of alternative dispute resolution is mediation. In a mediation, the parties engage in a process of negotiation with the assistance of a neutral, skilled party called a mediator. The mediator’s job is to help the parties reach an agreed-upon resolution of claims. Without such an agreement, the mediation is unsuccessful. There is no winner or loser in a mediation, and neither party can be forced to accept the outcome. Mediation is not likely to hurt your case, and may result in a satisfactory resolution.

Another form of alternative dispute resolution is arbitration. In an arbitration, the parties submit their dispute to an arbitration panel (normally composed of three arbitrators) who hear evidence and enter an award. Arbitration is usually quicker and less expensive than a formal trial. The rules are generally simpler and the proceedings are often streamlined. The arbitration award can be either binding or nonbinding, as agreed by the parties in advance. If the award is nonbinding, either side can appeal to a traditional court. A special form of arbitration that is often very useful is high-low arbitration. In high-low arbitration, the plaintiff is assured of receiving an award of no less than the low figure, but the defendant is assured of having to pay no more than the high number. This is a useful way of managing risk for both parties. Arbitration may be coupled, formally or informally, with mediation, and tends to foster negotiated settlements.

The tricky part of any form of alternative dispute resolution is knowing when to settle, and for how much. If you are involved in a mediation or arbitration, your lawyer needs to be highly experienced and skilled in valuing personal injury cases. Otherwise, your lawyer will either settle for too little, or hold out for too much. In either case, your interests will not be served. Your attorney must have and exercise a different set of skills in the alternative dispute resolution arena than those needed in the courtroom setting. Unfortunately, not all trial attorneys have the skills needed to effectively engage the alternative dispute resolution process.

At Drake, Hileman & Davis, we have been winning cases for your neighbors for more than 30 years. If you are seeking wise counsel to resolve your personal injury claim, we invite you to contact the law offices of Drake, Hileman & Davis. Visit our website or contact us directly for your free case analysis and evaluation.