What Is Alternate Dispute Resolution (ADR)?
When you are injured due to another person’s negligence and you submit a claim for damages, is it better to mediate or arbitrate your claim, or just press on to a trial?
It’s almost always better to attempt settlement of your claim before going to trial. The various methods of resolving claims prior to trial are referred to as Alternate Dispute Resolution (ADR).
What Is Mediation?
The most common form of ADR in Idaho is mediation. Both sides agree on a mediator, who is usually an attorney or retired judge with experience in handling personal injury cases. Both parties meet at the same place but in different rooms.
The mediator conveys offers back and forth between the parties (sort of like a shuttle diplomacy), discusses with each side the strengths and weaknesses of their respective positions, and tries to help the parties ultimately agree on an amount of damages for which they are both willing to settle.
What Is Arbitration?
Arbitration is another form of ADR. The parties make an informal presentation of their cases to an individual arbitrator, or a panel of arbitrators. A decision is made by the arbitrator(s), usually in writing. If it is non-binding arbitration, then it is advisory only and either party can reject the decision and proceed to trial. If both parties agree on the decision, they settle the case.
Even if both parties do not agree with the decision, it is helpful for them to see the amount of damages an independent third party assigns to their case and this can lead to a later settlement. If it is binding arbitration, the parties are bound by the decision and there is no appeal.
I rarely recommend binding arbitration to my clients because the decision is made by only 1 person (or possibly a panel of 3 persons), rather than having the benefit of 12 members of a jury making the decision. Twelve people usually come up with a decision that is fair; one person making the decision creates a greater risk of getting an odd result and there is no appeal.
Mediation or non-binding arbitration has real advantages over going to trial: (1) the parties are in charge and they decide what they are willing to settle for, instead of taking the risk of putting that decision in the hands of a jury; (2) it saves the cost of going through an expensive trial; (3) it avoids the anxiety and emotional stress of a trial; and (4) it gets the case settled much sooner than if it goes to trial. Most of the cases I take to mediation settle.
However, if the opposing party just isn’t reasonable in discussing settlement at mediation or rejects a non-binding arbitration decision favorable to you, then sometimes you do better by presenting your case as effectively as you can to a jury of your peers.
An experienced attorney can advise you as to which is best: mediation, arbitration, or trial.
Gary Montgomery is one of Idaho’s senior attorneys. He began his career as Assistant Attorney General for Idaho, and then as Assistant U.S. Attorney for the District of Idaho. He has tried over 100 cases, and has a remarkable win/loss record, prevailing over 90% of the time. He has represented clients in cases resulting in millions in settlements and verdicts.