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: A neutral person helps the parties discuss a voluntary settlement.
- Arbitration: A neutral person decides the dispute; the result may be binding or nonbinding under the applicable agreement and rules.
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 different ways to resolve a personal injury dispute. In mediation, a neutral person helps the parties explore an agreement. A mediator cannot require you to accept a settlement.
California law generally protects mediation communications, subject to statutory rules and exceptions. Evidence that is otherwise admissible does not become protected simply because it was used in mediation. Ask your lawyer what the confidentiality rules cover.
In arbitration, a neutral arbitrator hears the dispute and makes a decision. The effect of that decision depends on whether the arbitration is binding or nonbinding and on the applicable agreement and law. Review those terms with your lawyer before agreeing.
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.
Mediation generally involves discussion and negotiation rather than a trial with witness testimony. California’s mediation confidentiality rules can protect communications made for the mediation, but their scope and exceptions should be discussed with your lawyer.
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.
If a mediation does not lead to an agreement, the parties may continue negotiations, arrange another session, or proceed with discovery and trial preparation. The next step depends on the court schedule and the issues still in dispute. If no agreement is reached, see what can happen after an unsuccessful mediation for the next steps to discuss with your lawyer.
What Are Arbitrations in Personal Injury Cases?
Arbitration can be binding or nonbinding. Nonbinding judicial arbitration can allow a request for a trial after the award, subject to procedural deadlines. Binding arbitration generally replaces a court trial on the covered dispute, and judicial review is limited.
An arbitrator considers the evidence and decides the issues submitted. In binding arbitration, a party cannot ordinarily obtain a new trial just because it disagrees with the result. California law provides limited grounds and deadlines to challenge an award, so get advice promptly if a challenge may be necessary.
Arbitration may involve witnesses, documents and evidentiary rulings. The arbitrator issues an award under the governing agreement and rules. The procedures and requirements for explaining that award can differ from those in court.
Some disputes are subject to an arbitration clause in a contract. Whether a particular clause applies or can be enforced depends on the agreement and the law. A lawyer can review any agreement connected to your dispute before you decide how to proceed.
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