What is the Difference Between Mediation and Arbitration?
Mediation and arbitration are two alternative dispute resolution (ADR) processes in which you may need to participate after suing a negligent driver in a personal injury lawsuit. Most cases are resolved through a settlement facilitated by ADR. However, insurance adjusters know which trial lawyers have a strong history of winning at trial and may not offer as much as you deserve if you do not have an attorney whom they respect. Accordingly, representation by an experienced trial lawyer can help you get a more favorable settlement through ADR than representation by someone with no reputation as a trial lawyer. If you are wondering what the difference is between mediation and arbitration, you should consult the New York City car accident attorneys at Newman, Anzalone & Newman, LLP.
Both mediation and arbitration are forms of ADR, in which the parties try to resolve their dispute through a forum other than court. Arbitration is an ADR process in which the parties agree that the arbitrator whom they selected will hear evidence and determine the result of the case by using a method similar to a judge's method in a courtroom. Usually, the parties in a car accident case do not have the power to force each other to go to arbitration, and attendance is voluntary. Often, the arbitrator is a retired judge or an experienced lawyer. Sometimes they are selected from an arbitration organization. It is important to choose someone with a reputation for fairness.
The arbitrator will determine liability, whether monetary damages should be awarded, and how much. The arbitrator has power that a mediator does not have. Although it is quite similar in its process to a trial, arbitration is significantly cheaper than going through an actual trial.
Arbitration can be binding or nonbinding. If the parties engage in nonbinding arbitration, and one is not happy with the resolution, they can usually still pursue their case in court. However, when the parties have chosen binding arbitration, the arbitrator's decision is final, and it will not be possible to appeal it.
An arbitration is similar to a trial in that each side gets to present his or her case. An arbitration is structured like a trial, but the procedures are less formal. Each side presents an opening statement in which they explain their version of what is at stake in the case. After that, each side puts on evidence to show what happened to cause the car accident and the injuries and damages that were suffered.
Documents are placed into evidence. Sometimes witnesses testify before the arbitrator. The defense is allowed to do the same. The parties can make closing arguments, in which they state the outcome that they want the arbitrator to reach. In some cases, the arbitrator makes the decision at a later date so that they have a chance to review the documents and think about the case.
Mediation is a different type of ADR. It is conducted by a neutral third party, known as a mediator. The mediator is simply a facilitator and has no power to make any determinations about the case. In some cases, the parties attend mediation voluntarily, while in other cases, they are ordered to participate in mediation.
Different mediators use different procedures, and often parties are required at the outset to sign a written mediation agreement outlining the rules of the process. In most cases, the parties meet with the mediator separately at the start of the mediation to explain where they stand.
Usually, the mediator goes back and forth between the parties, discussing the parties' competing views of the case to come to a resolution. The mediator may speak privately with each side multiple times, helping each side see the other side’s view of the case and where there may be weaknesses in their own case. When a mediator is a retired judge or an experienced attorney, they may add information about how a claim like this would usually fare in court. Discussions continue until an agreement is reached or it becomes clear that the parties are too far apart to come to an agreement. If a settlement is reached, the parties will likely be asked to sign a written settlement agreement.
If you are seriously injured in a car accident, whether you are involved in a drunk driving accident or a teen driver accident, you may be asked to participate in ADR prior to trial or in lieu of trial. The difference between mediation and arbitration, particularly binding arbitration, can be critical to understand. It is vital to hire an experienced personal injury lawyer. Newman, Anzalone & Newman, LLP provides vigorous legal representation in car accident lawsuits throughout New York City. We assist injured people in Queens, the Bronx, Manhattan, Brooklyn, and Long Island. Call us at 718-896-2700 or complete our online form.