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Alternative Dispute Resolution in a Personal Injury Lawsuit

December 19, 2016 - Personal Injury

Though not always, injury litigation (up to and including trial) has a tendency to be expensive, time-consuming, high-conflict and adversarial, and quite demanding of one’s efforts, particularly if the lawsuit is hard-fought or complicated in various ways (administratively, procedurally, etc.) by the opposition.  Litigation is also inherently uncertain.  You could spend years litigating a case, only to be awarded damages that are low relative to what you might have expected.  Thus, as a general rule, litigation is best avoided when possible.

Do keep in mind that litigation is a matter of public interest, and as such, the content of your dispute is accessible to the public at-large.  If you’d like to ensure that your dispute remains private, you’ll have to engage in alternative dispute resolution.

In Florida, as in all other states, there are two popular forms of alternative dispute resolution: mediation and arbitration.  Each party may agree to engage in such alternative dispute resolution, or it may be judge-ordered.  In some cases, alternative dispute resolution may be required under a contract executed between the involved parties.

Mediation and arbitration offer an alternative path to settling an injury dispute without having to resort to the normal complications and expense of litigation.

What is Mediation?

Mediation is a form of dispute resolution that is less structured than litigation, and even less structured than other forms of alternative dispute resolution.  In Florida personal injury cases, mediation is often required by judges so that the involved parties have an opportunity to discuss, collaborate, compromise, and potentially resolve their dispute without the pressure of the adversarial environment typical of litigation.

Mediation can take up to a full day.  During mediation, the involved parties meet for a private, unstructured discussion of the dispute at-hand.  A mediator is chosen to help guide the discussion, but generally speaking, the nature of the discussion is meant to be informal.  Each side is encouraged to plainly discuss their concerns and listen respectfully to concerns of the other side.  Assuming mediation goes well, a settlement compromise may be reached to the satisfaction of each party.

Mediation does not force a settlement, however.  If the parties are unable to reach a compromise, they are free to move forward to trial.

What is Arbitration?

Arbitration is a more structured form of alternative dispute resolution than mediation, though it is still quite a bit faster, cheaper, and less adversarial than litigation.

In an arbitration, a neutral arbitrator is selected, and this arbitrator serves as a pseudo-judge.  Each party presents their arguments (with evidence), and the arbitrator makes a decision.  A Florida court subsequently confirms the decision, thus rendering it legally enforceable.

There are several types of arbitration.

Mandatory arbitration requires that the parties engage in arbitration.

Voluntary arbitration gives each party the option of engaging in arbitration.

Binding arbitration forces each party to accept the decision of the arbitrator as the final decision on the disputed matter.

Non-binding arbitration gives each party the option of accepting the decision of the arbitrator.  If any party is unwilling to accept the arbitrator’s decision, they may push the matter towards trial.

Trial litigation is best avoided, if possible.  The best personal injury attorneys are capable of settling a case through alternative dispute resolution, but prepared to aggressively litigate if circumstances call for it.

If you or someone you love has been injured as the result of someone else’s wrongful acts or omissions, seek the counsel of a skilled Fort Lauderdale injury lawyer at the Law Offices of David I. Fuchs.

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