The ideal outcome of any personal injury case is to reach a settlement without having to file a lawsuit and enter litigation. But if a dispute arises that cannot be resolved through negotiations between your lawyer and the legal team of the defense, proceeding to litigation might be the only way to pursue fair compensation.
Even if your case does proceed to litigation, that doesn’t necessarily mean it will go all the way to trial. If no settlement is reached after discovery, your case might go to alternative dispute resolution, which is a more time- and cost-efficient option than trial.
Examples of alternative dispute resolution include mediation, arbitration, and mandatory settlement conferences. We’ve provided an overview of each below:
Mediation is a non-binding form of alternative dispute resolution, during which a neutral mediator tries to facilitate a mutually acceptable resolution between the involved parties. Mediation is appropriate in cases when the parties are close to reaching a settlement and/or both parties want to maintain control over the outcome of the case. This form of ADR might not be appropriate if one of the parties involved refuses to cooperate.
Unless otherwise provided by California law or the California Evidence Code, any settlement discussions, communications, and negotiations that happen over the course of mediation are not subject to discovery or admissible in court and are confidential.
During arbitration, a neutral arbitrator reviews either side’s arguments and evidence and then decides the outcome of the dispute. Arbitration can be either non-binding or binding.
In non-binding arbitration, either party can request a trial if they do not agree with the arbitrator’s decision. In binding arbitration, both parties waive their right to a trial and consent to accept the arbitrator’s decision. If it seems unlikely that both sides will reach a mutual agreement through mediation but both sides want to avoid the time and expense of trial, binding arbitration might be a viable option. If both sides want to maintain control over the outcome of the case, binding arbitration would not be the best option.
Mandatory Settlement Conferences
During mandatory settlement conferences, the involved parties and their lawyers meet with a judge or neutral person (a “settlement officer”) to discuss the options for settling the dispute. Rather than rendering a decision in the case, the settlement officer or judge helps the parties assess the weaknesses and strengths of their case and negotiate for a settlement. These settlement conferences can be either voluntary or mandatory. Generally, a mandatory settlement conference is held close to the date when the case is scheduled for trial.
Will My Case End up in Alternative Dispute Resolution?
Most personal injury cases are resolved without having to file a lawsuit. Whether your case will proceed to litigation and eventually to alternative dispute resolution depends on a number of factors including:
- The Strength of the Available Evidence: If you have strong evidence to prove your case, the opposing party probably will not want to take on the risk and expense of litigation. The best personal injury attorneys prepare for settlement negotiations as if they are going to trial by compiling all available evidence even if the claim seems likely to settle. This approach can help prevent disputes that might lead to litigation and eventual ADR.
- Whether You Signed an Arbitration Agreement: If you signed an arbitration agreement that covers the cause of action, it may be necessary to resolve the case through arbitration rather than going to trial. Your lawyer can review the language of the arbitration agreement to determine if it is legally enforceable and whether the cause of action is indeed covered.
- Whether the Opposing Party Is Willing to Cooperate: Sometimes a defendant simply refuses to cooperate despite being presented with strong evidence to prove the claimant’s case. In this scenario, proceeding to the latter stages of litigation might be necessary, which could involve alternative dispute resolution.
- The Amount of Compensation You Are Pursuing: If you’re not seeking significant damages, the opposing party probably would not want to invest considerable time and money into litigation. But if you are pursuing substantial compensation, the defense may have more incentive to dispute certain elements of your case, which could eventually lead to alternative dispute resolution.
- Whether You’ve Made Mistakes That Lead to a Dispute: Sometimes a personal injury claimant will make a mistake that leads to a dispute. One oversight could be the difference between reaching a settlement without having to file a lawsuit and going all the way to alternative dispute resolution or trial. Common mistakes that could harm your case include providing a recorded statement to the insurance company, posting about your accident or case on social media, or failing to follow your doctor’s instructions.
- Whether Mediation or Arbitration Seems Like a Viable Option: Depending on the circumstances, entering alternative dispute resolution might be in the best interests of all parties involved. As previously mentioned, ADR is less expensive, time-consuming, and formal than trial. If it seems likely that the outcome of ADR would be no different than the outcome of going to trial, then ADR would of course be the better option.
- Whether You Are Required to Enter a Mandatory Settlement Conference: Before your case proceeds to trial, you may be required to go through a mandatory settlement conference.
Discuss Your Case with a Personal Injury Attorney in Long Beach
Your Injuries Are Personal to Me
Attorney Michael D. Waks has extensive experience in settlement negotiations and every stage of litigation. Michael will prepare for settlement negotiations as if he is going to trial and will fight tenaciously to reach a fair resolution without having to enter litigation. But if the opposing party refuses to cooperate, Michael will relish the opportunity to litigate your case even if that means going all the way to alternative dispute resolution or trial.
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