What Is Alternative Dispute Resolution in a Personal Injury Claim?
Alternative dispute resolution (ADR) involves a range of processes or techniques used to resolve personal injury claims without the need to use the traditional court system. While there are over 400,000 personal injury cases filed in the United States each year, only about 4% to 5% of those reach the courtroom. The majority of claims are settled in out-of-court agreements. Most claims are settled in the pre-trial stage. In other cases, however, parties agree to a settlement just before the trial begins.
ADR is an increasingly popular, efficient, and cost-effective way of settling legal disputes. There are different methods of ADR that can be used separately or in conjunction with each other, including mediation, arbitration, settlement conferences, and neutral evaluation. If another party’s negligence caused you to suffer harm, a skilled personal injury lawyer can help you secure a settlement that fully compensates you for your injuries.
What is Alternative Dispute Resolution (ADR)
In a personal injury case, the injured party seeks to recover damages from the at-fault party. Whether the defendant is an individual or entity, the most recognizable way to recover damage is to file a lawsuit in a court of law. The case is then tried in front of a judge or a jury. The judge or jury will decide who was at fault for the accident and what, if any, amount of damages the plaintiff should recover. This process can be lengthy and costly for all parties involved. In fact, it could take years before the plaintiff receives any money from the defendant or the defendant’s insurance company.
Alternative dispute resolution is a quick, efficient, and less-costly alternative to the court system. ADR is a broad term describing several approaches employed in resolving conflict with the help of a neutral third party.
Some personal injury cases start as court proceedings and later get resolved through ADR. Others are never filed with the courts. The majority of personal injury cases are resolved and settled outside the courtroom before they go to trial. There’s a good reason for this – litigation is unpredictable, costly, and time-consuming, and it’s usually in the parties’ best interests to avoid it.
Most Common Forms of Alternative Dispute Resolution
The most common ADR methods used to resolve issues inherent to personal injury cases include:
Negotiation is usually the first attempt to settle a dispute through legal means. This method involves two parties coming together to work out a dispute. Negotiation is informal and allows for the active participation of the respective parties in the process.
Negotiation is deliberate and confidential. It is a great way to resolve conflicts without going to court, and can be executed informally through conversation or with the help of a mediator. It offers maximum flexibility, which comes with merits and demerits.
For instance, both parties involved can set the rules for the negotiation and decide what matters they will or will not compromise on. Nevertheless, this can be a problem if neither of the parties is willing to compromise. If a resolution is obtained as a result of the negotiation, both parties can sign legally binding documents to bring the conflict to closure.
When parties are unwilling or unable to resolve an issue through negotiation, they may turn to mediation. Mediation, also known as facilitation, is a task-oriented and structured procedure. An impartial third party, referred to as a mediator, oversees the discussions between the conflicting parties.
The mediator offers guidance and helps the parties to try to decide on a mutually agreeable amount of damages to be paid to the injured person. The mediator is responsible for interpreting concerns, relaying information between the affected parties, framing issues, and defining the points of contestation. Additionally, the mediator may offer a creative solution and help in drafting a final settlement.
The parties and their mediator typically manage the mediation process, determining where the process takes place, who will present, how the process will be paid for, and even how the impartial party will interact with the parties involved. In the majority of personal injury cases, mediation is a voluntary procedure. Sometimes, however, mediation may be required by rules, statutes, or court orders.
Mediation can take many forms based on the specific needs of the parties involved, including:
- Shuttle- the parties are separated and the mediator shuttles between each one with settlement proposals.
- Face-to-face- parties communicate with each other during the process.
- Facilitative- the mediator facilitates direct communication between the parties.
- Evaluative- mediator makes an assessment of the claims made by each party during separate meetings and may propose settlement terms
If a resolution is reached, the agreement may be oral or written. While most mediation agreements are enforceable contracts, state laws will determine whether the agreement is binding. The agreement may become a court judgment if mediation was court-ordered. If the mediation process does not work, the parties may decide to pursue the claim through other legal means.
Arbitration is the most formal type of ADR procedure. It takes case-control and decision-making away from the parties. The arbitrator listens to the arguments and evidence from both parties and based on these, he or she determines the outcome of the matter. Both parties must agree to arbitrate the personal injury case. One party wanting to enter into arbitration does not interfere with the other party’s right to take the case to trial. A party cannot be coerced into arbitration.
While quicker and less expensive than a personal injury trial, arbitration also releases the parties from the formalities of presenting evidence, as is the case with courtroom proceedings. Parties make their own rules regarding evidence and arguments.
Arbitration can take several forms. In most cases, the plaintiff will notify the opposing party of his or her intent to arbitrate a dispute, stating the basis for the dispute. Usually, there’s a period for a rejoinder, which is followed by the selection of arbitrators. The parties get to choose who their arbitrator will be, and whether the arbitrator’s decision will be binding or non-binding.
- Binding Arbitration: Parties agree to accept the arbitrator’s decision as final and generally waive their right to a trial. There are also no rights to appeal the final decision.
- Non-Binding Arbitration: If the parties don’t accept the arbitrator’s final decision, they are free to take the case to trial. This form of arbitration is increasingly rare.
In this form of ADR, parties get an opportunity to present their case to a neutral party known as an evaluator. The evaluator then assesses each party’s evidence and arguments and offers options to resolve the dispute. Often, the evaluator is an expert in the subject of the conflict. However, the evaluator’s opinion is not binding; the opposing parties usually use it as a basis for negotiating a resolution of the dispute.
There are two forms of settlement conferences: voluntary and mandatory. In both types of settlement conferences, the concerned parties and their lawyers meet with a judge or an impartial party, called a settlement officer, to deliberate on the possible settlement of their dispute.
The settlement officer does not make a decision in this situation but helps the parties in evaluating the strengths and weaknesses of the claims and in negotiating a reasonable settlement. Settlement conferences are applicable in any case where settlement is an option, such as in personal injury claims. Mandatory settlement conferences are always conducted close to the date a case is set for trial.
When Is Alternative Disputes Resolution the Best Option?
There are situations where pursuing ADR over litigation is your best bet. Some common scenarios include:
When You Want to Settle the Case Quickly
Alternative dispute resolution methods often settle disputes in a matter of months or weeks, if not days, especially when the concerned parties are eager to negotiate and reach an amicable concession. Litigation takes time because of all the formal processes involved, as well as evidence presentation.
When You Are Partly At-Fault
If you are partly at fault for the accident that caused your injury and damages, you may wish to pursue alternative dispute resolution. You may want to avoid the court system because you could be found more at fault than you currently are with the other party. Taking your case to trial can be one of the mistakes that destroy your personal injury claim if you’re partly at fault.
When the Other Party May Be Willing to Negotiate
Alternative dispute resolution might be worthwhile if the other party is willing to negotiate on your personal injury claim. While ADR is usually faster and cheaper, don’t discount the value of the opposing party’s willingness to negotiate and settle the case out of court. You’re more likely to walk away with a satisfactory outcome if the opposing party is open to compromise or negotiation.
Benefits of Alternative Dispute Resolution
The court system cannot hold an efficient trial for every lawsuit filed. Due to the overload in the system, it can take years for a case to be tried. Alternative dispute resolutions are fast. A settlement can be reached within a few weeks or months of filing a personal injury claim.
The ADR process is also relatively cheaper than litigation. What’s more, a long, drawn-out trial can require witnesses, jurors, and the parties themselves to remain off work during the proceedings.
Parties in ADR proceedings have much more flexibility to select discovery laws and procedural laws regarding the dispute. They can also choose their method of resolution, as well as the mediator or arbitrator involved. The ADR process is also less rigid when it comes to schedules. Parties can choose to meet, initiate the ADR process, and resolves the matter as they see fit.
While ADR may be the best option for your car accident or personal injury case, you’ll want to talk to a car accident lawyer before proceeding with any option. A lawyer can help you think through all the options and stand by you as you navigate the process.