When most people think of personal injury law, they picture courtrooms, judges with gavels, and charismatic attorneys. In reality, however, most personal injury cases are handled via much less dramatic, private discussions. Mediation and arbitration are two strategies that parties use during these negotiations, and you might encounter them as you pursue compensation for an injury in California. Although such processes may seem complex and daunting, they are actually much more straightforward than the average personal injury trial. The good news is that your personal injury lawyer in California can guide you through mediation and arbitration, helping you pursue compensation with efficiency and confidence.
What is Mediation Under California Personal Injury Law?
Mediation helps parties avoid expensive, time-consuming personal injury trials. When parties agree to engage in this process, they meet with a neutral third party called a mediator. This individual is specially trained in helping others cooperate and compromise, and they strive to be as unbiased as possible throughout negotiations. Sometimes, courts in California force parties to attempt mediation before a trial can proceed – which means you may have no choice but to engage in this process.
Who Attends Mediations?
There are three important parties during the mediation process: The mediator, the plaintiff (you), and the defendant. The defendant and the plaintiff typically seek legal representation before engaging in discussions. You can have your personal injury lawyer represent you during the negotiations, while the defendant is generally represented by an insurance company. The insurance company may employ its own defense attorney to assist with negotiations. The insurance company may also send another employee called an “adjuster” to the mediation.
Can I Talk About My Mediation?
Generally speaking, mediations are completely confidential. No one is allowed to discuss the details of these negotiations in public, and both parties often sign confidentiality agreements before the mediation begins. Confidentiality is important because the details of the mediation could affect a later trial. In other words, nothing you say during the mediation can be used against you if the negotiations break down and you are forced into litigation.
What is the Goal of Mediation?
For defendants and their insurers, the goal is simple: Pay as little as possible to settle the dispute. Remember, insurers are for-profit companies – and most of these organizations are good at shaving down costs. This is why insurance adjusters and insurance defense attorneys earn high salaries, and they can come up with all kinds of reasons to avoid paying you a fair settlement.
It is your injury attorney’s job to push back as much as possible during this process. Every time the insurance company comes up with an excuse, your lawyer can provide a counter-argument. In many ways, mediations play out like “mock trials.” Both parties may present evidence such as videos, photos, and so on.
How Do Mediators Help Me Get Compensation?
Skilled mediators are essential during this process, and both defendants/insurers can play a role in selecting them. You can communicate privately with the mediator, and you might wish to affirm your willingness to settle out of court. However, it is generally a good idea to show the insurance company that you are dead-set on litigation, as this may put pressure on them. By the end of the process, the mediator should have helped both parties agree upon a “settlement.” This is a sum of money that will (hopefully) cover your total damages. In exchange for accepting the settlement, you agree to cease all further legal action. The defendant can also move forward without ever admitting fault.
What is Arbitration?
Arbitration is similar to mediation, although the role of an “arbitrator” is different from that of a mediator. The word “arbitrator” comes from the Latin term for “judge,” and this should give you some indication of how they will oversee the negotiation. While a mediator only guides parties toward resolution, an arbitrator enforces a specific judgment.
Once you agree to engage in the arbitration process, you must accept the outcome. When the arbitrator orders both parties to settle the dispute in a certain way, that order is legally binding. Keep in mind that compensation is not guaranteed, and the arbitrator may come to the conclusion that you are not entitled to a settlement at all. If the arbitrator decides that you should receive compensation, it is their responsibility to calculate a fair amount.
While mediation shares many similarities with a “proper” injury trial, arbitration is even more similar. During the arbitration process, both parties will have a chance to make opening statements, present evidence, testify under oath, call upon witnesses, and conduct cross-examinations. At the end of the process, each party will have a chance to provide a closing argument that summarizes the most important points.
Arbitration may be particularly common in situations involving larger corporations. For example, Airbnb has a mandatory arbitration process for any injury claims – and many other tech companies have similar policies. However, the enforceability of arbitration clauses within service or subscription contracts is not guaranteed. Many courts have struck down mandatory arbitration, which means you may not need to engage in the process if it is against your best interests. Sometimes, however, arbitration is genuinely the most logical choice.
Which Process is Better?
If you have a choice between mediation and arbitration, you might want to attempt mediation first. If mediation fails, you can then move on to arbitration. Both processes have their various pros and cons, and one strategy may be effective for certain situations. To discuss the most optimal path toward compensation, consider a consultation with an injury lawyer.
Find an Experienced Personal Injury Attorney in California
If you have been searching for an experienced personal injury attorney in California, look no further than Miracle Law, APC. With our help, you can learn more about how mediation and arbitration might affect your case. If these alternative dispute resolution strategies prove necessary, we can guide you toward compensation in an effective manner. Our attorneys are experienced negotiators with many years of experience, and we can fight for your best interests at the negotiating table. To learn about your next steps, consider booking a consultation at your earliest convenience.