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K. Lindsay Rakers
K. Lindsay Rakers
Attorney • (314) 588-8500

My Lawyer Filed My Case, Now What? Part V (Alternative Dispute Resolution)

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Last time, we covered expert depositions. Once your case has made it through expert depositions, your case is close to going to trial. One more thing that may happen prior to taking your case to a jury is alternative dispute resolution (ADR) – mediation or arbitration.

If your claim has not yet settled, it may be for a multitude of reasons – perhaps the file keeps moving from adjuster to adjuster and no one has really taken the time to evaluate what it is worth – perhaps the adjuster assigned to your file simply disagrees that any liability exists. But at some point, you will have to make the decision whether to take your case to a jury or try another alternative. Some cases should not be tried – that may be because there are extremely personal issues that the Plaintiff simply doesn't want the jury to hear – perhaps the risk to either side is simply too great to risk. Also, I have found that some of my clients want to be compensated for what they have been through and what they have lost, but are terrified of trial. My thoughts on trial and why it is sometimes the very best option for people for multiple reasons could be an entirely separate post. For purposes of this post, I am going to just briefly discuss alternatives to trial so that you are aware they exist.

Alternative Dispute Resolution is one option. Within ADR, there are two main options – mediation and arbitration – and they are completely different. Mediation is not binding, that is, you may still walk out of the mediation without having your case resolved. No one can force you to settle your case at mediation. The mediation process is one where the hope is to resolve the case but sometimes it simply doesn't happen. At mediation, you will be present as will a representative for the defendant's insurance company (or the actual defendant if no insurance applies), attorneys for both sides will also be there. There will, of course, also be a mediator. A mediator is a neutral party who will listen to the facts of your personal injury case (car accident, premises liability, medical malpractice, dangerous product) and then will speak individually and separately with both parties and try to help negotiate a settlement. A mediator is not a judge – he/she does not have a right to order anything. In fact, he/she won't take sides and usually won't offer his/her opinions as to the strength of the case.

A mediator is usually an attorney familiar with the issues raised, sometimes even a former judge. The attorneys involved in your injury case will both agree on a mediator and will pay him/her to attend. Prior to the mediation, the attorneys will send a statement to the mediator which provides the basic facts of the case as well as what the issues may be. The role of the mediator is to allow the attorneys to each give a brief statement (much like an opening statement at trial), and then will split the parties up into separate rooms and will bounce back and forth between the rooms. The mediator allows the parties to negotiate with each other through someone else so that emotions are not directed to the parties. Sometimes, the judge assigned to your case in civil court will actually order the parties to mediation as an attempt to bring the case to resolution quicker.

Arbitration is different from mediation. Arbitration is a binding procedure. You will, in fact, receive an order/judgment when you arbitrate the case and it will have the same effect as if you tried your case to a jury (unless you agree to non-binding arbitration). Typically, there will be a panel of three arbitrators, usually attorneys, that are selected by your attorney and the defense attorney in your case. I have served as an arbitrator in both Madison County, Illinois and St. Clair County, Illinois. In St. Clair County specifically, you are required to arbitrate your injury case if you think your case is worth between $15,000 and $50,000. I find this to be a helpful requirement. Oftentimes, I see attorneys unwilling to get involved in some car accident cases, etc. because the value isn't high enough. It costs quite a bit of money to take a case to trial. As a personal injury attorney, I have to make a decision as to whether pursing the case is going to cost more money than the case itself is actually worth. With mandatory arbitration, I can help more people with cases of lessor value obtain compensation.

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