At Messa & Associates, our clients understand that if their case does not settle, it can be decided at trial. In personal injury cases, that normally means conducting a lengthy jury trial. But is there another alternative?Should another method for case resolution be considered? The answer to both of these questions is……it depends.
Cases can be effectively and efficiently resolved through what is known as Alternative Dispute Resolution (ADR). ADR basically means removing a lawsuit from the court system and resolving it through an arbitration or mediation.
An arbitration is a less formal type of “trial” conducted before a retired judge, a well-respected attorney, or a panel of those individuals. They receive evidence and normally make a binding decision for the parties. Depending on the agreement, the rules of evidence still apply, and witnesses testify.
A mediation is very different from an arbitration and is best thought of as a guided settlement conversation. In a mediation proceeding, a retired judge or lawyer brokers a conversation among the parties with the ultimate goal of settling the case. Parties can normally exit a mediation process and return to the court system if the mediation fails.
With this basic information in mind, let’s discuss the advantages and disadvantages of Alternative Dispute Resolution.
Advantages of Alternative Dispute Resolution
Greater Flexibility. In an arbitration process, the parties have far more flexibility to choose what procedural rules apply to their dispute. They can elect to follow the rules of civil procedure in their jurisdiction, the national standards created by ADR organizations, or a mixture of both.
Parties can choose their Arbitrator/Mediator. Unlike with a judge or jury, the parties who agree to ADR can select the arbitrator or mediator who will hear their case. This can mean choosing someone who has more knowledge/expertise about the particular issues at hand. The greater the expertise of the arbitrator, the less time that needs to be spent bringing him/her up to speed.
Juries are unpredictable. Although our jury-based system is generally thought of as the best legal process in the world, juries are also 100% unpredictable. They can award damages which are both well above and well below what can seem fair to the parties. That uncertainty and greater risk is lessened when a case is mediated or arbitrated before a member of the legal community. Lawyers can usually provide a greater anticipated range of results for clients in this process.
Expenses are reduced. Trials are very expensive and can cost tens of thousands of dollars. Alternative dispute resolution offers the benefit of getting issues resolved quicker than would occur at trial – and that means less cost. Live expert testimony is normally reduced or not required.
ADR is faster. Trials are lengthy, and in many states and counties it can take years to have a case heard by a judge or jury. Because of the current pandemic, this takes even longer now. Appeals also can take years beyond that time. ADR proceedings are scheduled at the convenience of the parties, take place in a week or less, and often provide finality.
Confidentiality. The results of trials are public. In an ADR setting, results can be made private if the parties agree.
Less stress. ADR is often less stressful than expensive and lengthy litigation. They are decided in conference rooms, not courtrooms. Most people have reported a high degree of satisfaction with ADR.
Mediation and Compromise. In mediation, a mediator assists the parties to come to a mutually acceptable resolution of their dispute. Unlike a judge at a trial or an arbitrator at an arbitration hearing, the mediator does not decide how to resolve the dispute. The parties decide how best to resolve or settle their own dispute. Mediations can be effective where personal feelings are getting in the way of a resolution and a professional mediator can be brought in to act as a go-between. Mediation normally gives the parties a chance to express their concerns in a voluntary, confidential process while working towards a resolution and compromise. Mediation can provide the greatest level of flexibility for parties. It’s a good sign when everyone leaves the mediation feeling like they gave up something. It can provide meaningful closure as well.
Disadvantages of Alternative Dispute Resolution
Mediations are not guaranteed resolution. With the exception of binding arbitration, alternative dispute resolution processes do not always lead to a final resolution. That means it is possible that you could invest the time and money in trying to resolve the dispute out-of-court and still end up having to proceed with litigation and trial before a judge or jury.
Arbitration Decisions are final. Most decisions of an arbitrator cannot be appealed. Decisions of a court, on the other hand, usually can be appealed to an appellate court for a variety of legal grounds and for numerous alleged procedural errors. There are exceptions to this.
No Jury. While jury verdicts are uncertain and risky, juries are still the most well respected and equitable means to resolve disputes on earth. Our jury system is envied by the entire world. Juries can be compassionate in ways that judges and lawyers are not. They are well situated to evaluate credibility and other factors. While not perfect, a jury trial should never be forfeited without careful consideration of all factors in conjunction with your lawyer.
Fees. While cheaper than a trial, there are still fees for ADR. Depending on the arbitrator or mediator selected, these fees can be substantial. However, they are usually split by the parties.
So – should you consider Alternative Dispute Resolution for your case?
ABSOLUTELY! However, no two cases are alike and many factors must be considered before agreeing to an ADR process. At Messa & Associates, we prepare each case for trial with a sincere hope that they can be resolved without one. Trials are difficult, unpredictable, time consuming and expensive. While they often provide just results, we want the best outcomes for our clients in the most efficient way possible. This is especially true now because of the delays caused by the pandemic. ADR can be an expeditious and fair way to resolve your case without the additional risk and stress of a trial. It is best to think of ADR has another tool in the toolbox to be used at the right time for the right cases.
If you have any questions about ADR or whether it should be considered in your case, please give us a call at 215-568-3500.
Philadelphia Personal Injury Attorneys
Attorneys at Messa & Associates have extensive experience representing victims of injury. If you or a loved one has suffered an injury you believe was caused by someone else’s negligence, contact our office to speak with an attorney today. You can call our offices toll-free at 877-637-7252 or submit an online inquiry.
For more than twenty years, Mr. Rosenfeld has successfully represented victims of personal injuries. From 1995 to 2005, he worked for a Philadelphia-based trial firm and developed his substantial litigation experience. In 2006, Mr. Rosenfeld launched his own firm aimed at maximizing his clients’ recoveries in serious injury claims and providing them with compassion and respect. Messa & Associates, P.C. was happy to welcome Mr. Rosenfeld to the firm in 2007.