Arbitration of a personal injury case? What's That All About?
As many of you may know over the past several years, if not in fact decades, there has been a trend to reduce civil trials (primarily auto accident and personal injury litigation) by resolving issues through alternative means. These alternative means are generally referred to as “Alternative Dispute Resolution” or ADR for short.
There are several methods for ADR, including settlement negotiation, mediation, and arbitration. Each one of these methods requires a different approach, preparation, and formula for success. I will focus this post on ARBITRATION.
As stated above, arbitration is an alternate form of litigation that we engage in some of our personal injury cases. In the state of Oregon, arbitrations are mandatory in injury claims where the total demand for damages is for $50,000 or less. In addition, arbitrations are more common when the claim can be brought directly against the insurance company responsible for paying your claim (as opposed to an individual). You can expect some major differences depending on whether we are preparing your personal injury case for a jury trial or an arbitration hearing.
If your case was going to trial it would likely be a jury trial (as opposed to a bench trial in front of a judge). Your jury trial will last two days or more depending on the amount of documents used (exhibits and number of witnesses presented in your case. Arbitrations, by comparison, are much shorter. For a typical car accident claim or personal injury case your arbitration hearing should generally be no longer than one day, and in many cases it will last less than three hours.
In your jury trial, the judge will referee the selection of the jury and presentation of evidence. The judge also instructs the jury on the law applicable to your case. The twelve people of the jury then decide the outcome of your case. In arbitration the functions of the judge and jury are melded into one. In other words, the arbitrator will make all the decisions and is the one who determines what compensation, if any, you will receive in your case.
We may not know your trial judge until just before the trial is set to begin. By contrast, when we arbitrate a car accident or personal injury case we are directly involved with the selection of the arbitrator who will decide your case. Most arbitrators are also experienced personal injury attorneys or are retired judges. Some arbitrations are held with a three arbitrator panel. In this situation, each party will select their choice for arbitrator. The two selected arbitrators will then select a third lead arbitrator for the hearing.
Trials are held at the courthouse for the county in which the claim is filed. Trials are open to the public and normally have many court staff members present. Your personal injury arbitration will usually be held at one of our conference rooms and is only open to the persons directly involved with the case. A trial is recorded while an arbitration is not usually recorded.
All trial results are binding except where there was legal error made during the trial. Only under those very limited circumstances will a trial result be appealed. Arbitrations can be either binding or non-binding depending on the type of case we are handling on your behalf. A non-binding arbitration gives either side the flexibility to appeal the result and, instead, seek a jury trial to decide their case.
All litigation is expensive. However, arbitration can be accomplished for less cost and often just the fraction of the cost of pursing a jury trial.
This is intended as a basic primer on the differences between trial and arbitration. Please contact me for a free consultation if you would like to ask questions or need more information about the various forms of litigation.