Navigating mediation or arbitration can be complex. This article explains the key differences and how GJEL Accident Attorneys can provide expert legal guidance in your California personal injury case.
Mediation vs. Arbitration in CA Personal Injury Cases (GJEL Accident Attorneys)
- Mediation: Voluntary settlement discussions with a neutral third party (confidential).
- Arbitration: Binding decision by arbitrator like a judge and jury (waives court & jury trial).
Read the full article for a California personal injury attorney’s detailed explanation of mediation and arbitration in personal injury cases. Learn the pros, and cons, and how GJEL Accident Attorneys help you navigate the process.
Mediation and arbitration are two legal processes used in personal injury cases. Mediation is a voluntary process where both parties agree to settle the case through discussions facilitated by a neutral third party.
The mediator does not have the power to dictate a settlement but rather encourages both parties to reach an agreed-upon settlement range. Mediation is confidential, and the information exchanged between the parties cannot be used in the case thereafter.
On the other hand, arbitration is a binding legal process where an arbitrator acts as the judge and jury and reaches a decision that is binding on the parties. The parties waive their right to appeal and a jury trial. Arbitration is often used to save time and money and can be contractual, such as with Kaiser insurance, or agreed upon by both parties to avoid going to court.
The outcome can be controlled to a certain extent, such as with an agreed-upon limit on the amount that can be awarded. Arbitration can be an effective process at a time when it is difficult to secure a court date, a judge, and a jury.
What Are Mediations in a Personal Injury Case?
Mediations are voluntary processes, and they’re settlement discussions where both sides have agreed that it’s an appropriate time during the case to ask a neutral third party to sit down with both sides and see if a settlement can be reached. However, mediators have no power through the courts (or through the parties) to dictate a settlement.
They can’t tell one side what to pay, or the other side what to accept. All they can do is sit down with the parties, both together and then privately, talk about the issues in the case, and see if they can bring both sides into a settlement range where they can have an agreed-upon settlement.
There are normally no witnesses called, there’s no testimony taken from the parties or anybody else, it’s just an informal discussion of issues in the case. It’s confidential. By state law, what gets discussed, and the information that gets exchanged between the parties at a mediation remains confidential and can’t be used in any part of the case thereafter.
It encourages people to be open and honest, which is normally helpful in trying to settle. Before the session, your attorney will prepare a mediation brief laying out your damages, the facts, and the legal basis for your claim. You should decide on your floor before you walk in: the minimum you would accept to settle the case. Think through what a trial would cost in time and money, and how uncertain the outcome would be. Being clear on that number in advance keeps you from making a pressured decision in the room.
Sometimes you can have more than one mediation if the first one doesn’t work. If mediation does not produce a deal, the case picks up where it left off. Everything said at mediation is confidential. None of it can be used in court or in arbitration later. A failed session changes nothing about either side’s legal position. The next step is usually back to the litigation track: finishing discovery, preparing for trial, or exploring whether both sides would agree to arbitration instead.
What Are Arbitrations in Personal Injury Cases?
Arbitrations, on the other hand, are binding. Not all arbitration locks you in. Non-binding arbitration lets either side walk away from the result and take the case to trial. Binding arbitration does not. Once the arbitrator rules, that is the end. Non-binding arbitration is not common in personal injury cases, but it can still give both sides a useful baseline for settlement talks.
The arbitrator is empowered to be the judge and the jury, and he or she will decide the case that will be binding on the parties, who will have waived their right to appeal and waived their right to a jury trial. Once a binding award is issued, it is very hard to undo. Courts in California can set aside an award only in rare cases: fraud, serious misconduct by the arbitrator, or the arbitrator going beyond their authority. A bad ruling or a factual mistake is not enough. That is the main risk to weigh before you agree to binding arbitration.
Arbitrations normally are conducted similarly to a trial. There will be witnesses called and examined by the arbitration attorneys, there’ll be evidence submitted, there can be evidentiary rulings by the arbitrator, and ultimately the arbitrator will issue a binding decision with a written explanation.
Now, there are many reasons for an arbitration. Sometimes it’s contractual. For example, if you are Kaiser insured, something happens to you at a Kaiser hospital and there’s a suit that’s filed, that suit doesn’t go into court, it goes into arbitration and it’s normally heard either by a three-judge panel or a single arbitrator panel. Many contracts include a clause that requires arbitration instead of going to court. Health plans and some insurance policies are common examples. If you signed one before the accident, you may be locked in. Check any agreements tied to the accident or the parties involved. A lawyer can tell you if the clause holds up under California law.
Sometimes the parties in a court case can decide to go outside the court system and hire a single arbitrator to act as judge and jury. There are many reasons for this.
Number one, in this day and age of economic difficulties in the court system, it’s quicker to use an arbitrator if both sides agree. You can streamline the process, call fewer witnesses, and rely more heavily on written documents such as depositions, and both sides can save money that way.
You can control the outcome to a certain extent. Oftentimes with binding arbitrations, the parties have agreed that there will only be a certain amount that can be awarded. In other words, there’s a cap on what the award can be or there’s a floor below which the award can’t go. Now, the arbitrator isn’t informed, but the result is adjusted based on these kinds of agreements. A high-low agreement works like this: both sides agree in advance that the final award will fall within a set range. If the arbitrator’s award falls below the floor, the plaintiff still collects the floor amount. If the award exceeds the cap, the defendant only pays the cap. The arbitrator is not told about the agreement. This structure reduces financial risk for both sides and can make arbitration more attractive when the range of possible outcomes is wide.
Also, if there are issues that have already been agreed upon by the parties, they can limit the issues in the arbitration. Mostly it’s just to save time and money, but it’s a very effective process in this day and age where it’s difficult to get a courtroom, a judge, and a jury.
Whether you’re considering mediation or arbitration for your California personal injury case, it’s crucial to have experienced legal representation to protect your rights and ensure the best possible outcome.
At GJEL Accident Attorneys, we have a deep understanding of these alternative dispute resolution methods and can guide you through the process, providing skilled advocacy and strategic advice. Contact us today for a free consultation to discuss your case and learn how we can help you achieve a favorable resolution.
Written by Andy Gillin. Last updated 4/15/24
