What is Alternative Dispute Resolution (ADR)?

When you have suffered a personal injury or the death of a family member caused by someone else—whether in a car accident, trip and fall, premises accident, an accident resulting from medical malpractice, the use of a defective product, or any other injury caused by another’s negligence—you have the legal right to make a claim against the person responsible for your damages.

This places you in an adversarial position with the responsible party or parties—or in most cases with the insurance company indemnifying them. Your interests and theirs are at odds: You want to be compensated for losses to your health and finances incurred through no fault of yours. The insurance company for the defendant, on the other hand, wants to keep their payouts to a minimum. They are, after all, in the business of generating profits. So, it is not surprising that they will look for every possible reason why they should not pay what you are asking for.

Insurers and their attorneys will typically work hard to build a case for not paying your claim, employing numerous tactics to protect their bottom line. You, of course, assuming your injuries are at least somewhat serious, will have retained a personal injury attorney to counter those tactics and make your case for a fair recovery award.

There are times when you will need to turn to the court system for justice, but the good news is that in many, many cases, there are alternatives to a trial that can simplify the process and spare you having to go to court. Collectively, these options are known as Alternative Dispute Resolution or ADR. Your lawyer may be able to resolve your case by negotiating directly with the defendant’s insurance company, or one of the following types of ADR may yield a satisfactory outcome:

Mediation

In mediation, both sides will present their cases in a conversation in the presence of a neutral third party, the mediator. The mediator does not render a decision, but helps the parties to conduct an open conversation and to communicate effectively, so that they may be able to come to a settlement agreement without the necessity of litigation. The outcome of the mediation is left up to the parties. Mediation is usually more successful in situations where emotions remain fairly level on both sides and both parties have a strong desire for it to work. Your attorney will prepare you in advance and attend the mediation with you.

Arbitration

Like mediation, arbitration involves presenting both sides of the case before a neutral third party. Both parties must agree on the person who will arbitrate the case. It will usually be a lawyer or former judge.

Arbitration differs from mediation in that the arbitrator will render a decision after hearing arguments and examining evidence presented by the parties. An arbitration is conducted similarly to a trial, but it is less formal than a trial and the rules are usually more relaxed. Arbitration can be either “binding” or “non-binding.”

In a binding arbitration, both parties have waived their right to trial and agreed to accept the arbitrator‘s decision as final. Neither can change their mind later and ask for a trial; nor can they appeal the decision for any reason.

A non-binding arbitration allows a party who does not agree with the arbitrator’s decision to move forward with litigation. There may, however, be penalties for a party who has rejected the arbitrator’s ruling and proceeds to trial but does not get a better result.

Neutral Evaluation

Neural evaluation may be used in complex cases, which may have difficult issues pertaining to the evidence, unclear facts, technical issues, or damages of a type that are difficult to prove. The evaluator should enjoy the respect and trust of lawyers for both sides and will usually be chosen, at least in part, on the basis of his or her prior experience and understanding of the subject matter in question. After reviewing the documentation provided by both sides, the evaluator will draw up a written evaluation, which will usually include an opinion on each side’s position and will often indicate a suggested settlement range.

Settlement Conferences

Settlement conferences may be scheduled voluntarily or may be ordered by a judge. The parties will meet with neutral party—either a judge or a “settlement officer,” and will discuss how the case might be settled without having to resort to a trial. A judge will often order a settlement conference when a case has been set for trial. The settlement officer is merely a facilitator of the settlement discussion and does not make a decision on the case. Conferences can avoid the higher expense of a trial and the added stress on an overburdened court system.

No Court, Less Stress

Many plaintiffs dread having to appear in court and welcome ADR as a means to achieve a just settlement without the stress of an actual trial. Discuss the options with your attorney to find out is ADR is appropriate in your case.