Articles Posted in Mediation and Arbitration

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Massachusetts Lawyers Weekly, a weekly publication for lawyers on news and developments in Massachusetts law, has recently launched Exhibit A.  Exhibit A is a monthly newsletter written by lawyers and intended for non-lawyers.  It is written in a way which makes the law a little less confusing and easier to understand.  It is a FREE monthly publication you can pick up at most MBTA stations.  The newsletter covers many different legal topics which you may find useful if you have specific legal questions, or, if you are just interested in the law generally.

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Arbitration is an increasingly common method for resolving personal injury cases in Massachusetts.  One of the great benefits of arbitration is that you avoid the anxiety and unpredictability of a jury trial.  Also, like mediation, arbitration is quick, as opposed to a jury trial which can be protracted and delayed.  Another great benefit of arbitration is the fact that they are inexpensive, unlike jury trials where expenses can be substantial.

You must understand the decision of the arbitrator is final and that you are stuck with whatever decision the arbitrator makes for your case.  But, most if not all arbitrators know the real value of a case so as a plaintiff, you can be confident that you will not be shafted if you have a good case.

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I find mediation to be a great alternative to trying a Massachusetts personal injury case before a jury.  It is not that I don’t like trying a case before a jury (it is actually quite fun).  Rather, jury trials are so uncertain and unpredictable because trying a jury case is a complete and total crap shoot; you never know how the jury will decide the case, until the end when the verdict is reached. Those concerns are obviated with mediation.  It is for that very reason that I love mediating cases.

Mediation is great for a few different reasons.  First, it is a relatively inexpensive process as opposed to the high costs associated with a jury trial.  Second, mediations usually are quick in that they can range from as short as two hours to at most, a couple of days.  Third, mediation is non-binding, as opposed to the binding nature of a jury decision (barring any appeals).  Fourth, mediation is a cooperative environment whereas litigation is purely adversarial.  Fifth, mediations can be a win-win for all parties involved.  That is because with a successful mediation, there truly are no losers because both or all parties win.

If your Massachusetts injury lawyer can get the insurance adjuster to agree to mediate your claim, it can be a very quick, cooperative and gratifying experience.  But remember that if a settlement is not reached at your mediation – which is a common occurence – you need to be ready and willing to let a jury decide your Massachusetts personal injury claim.

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Massachusetts personal injury claims can often be speedily resolved through arbitration (if the parties can agree to arbitrate, in the first place).  One of the notable benefits of arbitration is that the arbitrator will usually issue his/her decision within one to two weeks after the arbitration has concluded.  This is a great benefit if you are considering arbitrating your Massachusetts injury claim.  Of course, it must be remembered that the decision of the arbitrator is binding, with very limited exceptions.

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Ok, your Massachusetts personal injury attorney and the insurance adjuster cannot agree on the value of your case. When this happens, mediation can be very advantageous. Why? Because mediation usually promotes resolution with less expense and with much less risk than can a bench or jury trial. This is because a good mediator will inform you and your personal injury attorney of the strengths and weaknesses of your case. At the same time, a good mediator will do the same with the insurance adjuster and/or defense attorney. Mediation thus can be an "enlightening" experience where the mediator can convince both parties that compromise can bring victory to both parties.

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I would not recommend it.  The insurance adjuster and/or defense attorney will exploit your inability to properly articulate and convincingly argue the strengths of your case.  The inspiration for this post comes from Jonathan Stein, a California personal injury attorney who has a great post on his blog about this very topic.  Here is his post:

FAQ: Can I mediate my own case?

Simple answer: Yes.

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You would be surprised at how difficult it is for attorneys to agree on a mutually acceptable mediator or arbitrator to hear a personal injury case.  Usually, after the lawyers have agreed to submit the Massachusetts injury case to a neutral, they will each have a list of their preferred mediators and arbitrators.  The key is for the lawyers to find common middle ground on a neutral they are both comfortable with.  The problem is that often certain mediators and arbitrators have reputations as being plaintiff-friendly, or, conversely, defense-friendly.   

Choosing the right neutral is tough, but it can make all the difference in your case.

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If you have been injured in an accident in Massachusetts, and you have decided to handle your injury claim without a Massachusetts personal injury lawyer, you will need to know how to negotiate with the insurance company.  Here is a great blog I found that is called How to Negotiate – Negotiation Skills for Any Situation.  Check it out for some great negotiation insight. 

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I came across a great web site that offers numerous links to ADR (Alternative Dispute Resolution) blogs.  It is called the world of alternative dispute resolution blogs.  Check it out for  information pertaining to mediation and arbitration, among other things.

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