Alternative dispute resolution (or ADR for short) is being increasingly pushed by the judiciary and insurance companies involved in civil litigation. The Federal courts even have pilot programs where ADR is mandated before a case can proceed to trial. The question for the personal injury attorney and client is whether ADR is a good thing.
There are three different methods of ADR presently in use in New York. They are mediation, arbitration and summary jury trials. Mediation and arbitration are by far the two most common, but summary jury trials are also increasing in frequency. Mediation is a process by which all parties agree to meet with a mediator. The mediator does not have authority to determine any issues, but merely tries to foster agreement among the parties and broker a settlement. The mediator has no interest in the outcome of the case, and acts as a neutral third party who looks at the potential evidence with the clear eye of someone not personally involved in the litigation. A skilled mediator can help each side to see their potential problem areas, and arrive at a reasonable settlement figure in light of the strengths and weaknesses of their case. If at the end of the mediation no agreement is reached, the case proceeds to trial.
Arbitration is a process whereby the case is heard by a neutral third party who DOES have the power to decide issues and render a judgment. Arbitrations can be held before a single arbitrator or a panel of three. The parties may agree to have a particular arbitrator apppointed, or an arbitrator may be appointed for the parties should they choose to go through an organization like the American Arbitration Association.
The summary jury trial is the most complex form of ADR. It is conducted through the court system, and as its name suggests, involves the use of a jury. It is essentially a non-binding mini-trial, where each party’s time to present their case is limited, the foundation requirements for evidence are waived, and the ability to call multiple witnesses is severely curtailed. While the form of a summary jury trial varies from place to place, the Plaintiff is often the only witness called, and medical evidence is presented through medical records only. Based upon the limited amount of evidence presented, the jury then renders a non-binding decision on both liability and damages.
Each form of ADR has its good and bad points. Mediations are often effective where each side comes to the table honestly working to settle the case, they are much cheaper than conducting a trial, and you can always proceed to trial if an agreement is not reached. Arbitrations are also much cheaper than a trial, but the result is binding on the parties except in very rare circumstances, and an appeal to address any legal errors made by the arbitrator is generally unavailable. Summary jury trials are an effective tool to help a party guage how receptive a jury will be to their arguments, and can help a party get a feel for the value of their case, but at the end of the day there isn’t necessarily an agreement and certainly no binding judgment.
All three methods of ADR can be useful in the right case. Here’s how I utilize the various methods. I will mediate almost any case so long as I agree to the mediator. Some mediators are great, with a 90% or greater success rate. But for every good mediator, there are three more who have little experience/skill at the job. I have had a good deal of success mediating cases of all sizes, and they are particularly effective in a case with multiple defendants.
I will only agree to arbitrate smaller cases where I have some say in who the arbitrator will be. I will not participate in arbitrations before a panel. The most frequent type of case I arbitrate is one in which there is a threshold issue (such as the serious injury threshold in an auto case) or where liability will be very difficult to prove. My view is that it is better to lose the case at an arbitration that won’t cost much than to spend thousands of dollars on a trial only to receive the same result.
I have to admit that I have little experience with summary jury trials, as they are used infrequently in the Southern Tier of New York. My philosophy, though, is similar to arbitration. There is little sense in submitting a good case with substantial value to a summary jury trial, as nothing good can come of it. I only agree to this form of ADR in a case with limited value or difficult liability issues, though I would also shy away from the difficult liability issue as a negative verdict would only hurt your position with the insurance carrier and make settlement that much more difficult.
Those are my thought on ADR, for what they are worth. Other attorneys’ experience may vary, but I think I am likely in the majority. The great unknown is always the individual case you are handling and the skill of the attorney handling the case. Difficult cases prepared effectively and meticulously can still result in a good outcome, and insurance companies are understandably wary of any case in the hands of a skilled attorney. The key is to show the insurance company that they run the risk of significant exposure by forcing the case to trial. Show them that risk, and odds are that the insurance company will show YOU the money!
Thanks for reading,
ZiffLaw Attorney, Esq.
Personal Injury and Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William Street
Elmira, NY 14901