Jury trials are expensive, time consuming, stressful and risky. Many litigants prefer Alternate Dispute Resolution (ADR). The principle forms of ADR are mediation and binding arbitration. ADR can take place in virtually any setting, utilizing virtually any procedure, provided that everyone agrees. check my Console and Associates P.C.
There are many companies that offer arbitration/mediation services for legal disputes.
Mediation involves bringing the sides together before a (hopefully) neutral mediator. This can be a judge, an ex-judge, a practicing attorney, a professional mediator or any other individual both sides agree on. By bringing the parties together in this setting, the mediator hopes to expedite settlement of the case or, at least, to bring the sides closer together.
Mediators promote settlements by pointing out vulnerabilities that the parties may not realize exist in their own case. The mediator’s neutral perspective may give both sides the first truly independent evaluation of the case. This can greatly influence the way the parties view the settlement value of the case.
Binding arbitration is second choice, and a better option if the sides are entrenched in their positions. Binding arbitration may involve a mini or summary trial. The rules of evidence are relaxed to permit admission of evidence without the formalities required in jury trials.
For example, medical reports may be used to prove damages rather than medical testimony. This greatly reduces the length and expense of litigation. With binding arbitration, the ruling of the arbitrator ends the dispute. With non-binding, the ruling is advisory only.
High-low arbitrations are a special kind of binding arbitration in which the parties agree to high-low parameters. These parameters set the upper and lower limits of the award. For example, in a 100/10 high-low arbitration, the most the plaintiff could receive is $100,000, regardless of the size of the award. The lowest possible award would be $10,000, even if the arbitrator returned a $0 award. If the award is somewhere between $10,000 and $100,000, the plaintiff receives that in-between amount.
United States Arbitration and Mediation is a company that uses high-low arbitrations.
The scary thing about submitting your legal dispute to binding arbitration is that it is binding. Absent gross misconduct by an arbitrator or litigant, here is essentially no appeal from an unsatisfactory binding arbitration award. With jury trials, the grounds for reversal on appeal are much broader. Thus, one of the most crucial elements of any binding arbitration is the identity of the arbitrator(s).
With a jury trial, you case is decided by “a jury of your peers”. You have some degree of control over the makeup of that jury through the voir dire process. Effective voir dire is crucial to a good outcome and requires great care. With binding arbitrations, you must select the arbitrator(s) with an even higher degree of care.
The danger with arbitration is that the arbitrator(s) often have pre-existing relationships with one or more of the attorneys and/or the insurance company. There is little danger of that with juries since jurors who know one of the parties or lawyers are stricken for cause from the panel.