Articles Posted in Mediation and Arbitration

Arbitration with respect to Massachusetts personal injury claims is essentially a voluntary process.  With the exceptions of Massachusetts underinsured and uninsured motorist claims, the decision to arbitrate a personal injury claim is a mutual decision arrived at by the relevant parties.  Often, the parties to an arbitration will agree to a high/low agreement before the arbitration.

A high/low agreement is demonstrated by the following example.  Suppose that the parties agree to a high/low of 10k/20k.  This means that whatever award, if any, the arbitrator issues, the claimant will receive no less than 10k nor no more than 20k.  Or, the insurance company will have to pay a minimum of 10k and a maximum of 20k.  This is a safeguard, and a risk, that the parties use to provide that their respective exposure and risk are minimized.

Whether or not a high/low agreement is favorable to you in a Massachusetts personal injury arbitration depends upon the facts of your case.

If the parties involved in a Massachusetts injury claim have reached an impasse, mediation can oftentimes help to achieve resolution.  But, mediation only really works if the parties are willing to make it work.  If the parties to the dispute are unreasonable in their expectations, or, are unwilling to compromise their differences, mediation is probably a waste of time and money.  Here are some other factors, provided by Nolo.com, which militate against mediating a personal injury claim:

All parties to a dispute must agree to mediate, so if one party refuses or isn’t competent to participate, the case cannot be mediated. Mediation may also not be the best choice if:

• One of the parties wants to set a legal precedent that interprets or defines the law according to its own point of view. Legal precedents cannot be set in mediation because mediation agreements do not establish who is "right" or "wrong," and mediation decisions apply only to the parties involved in that particular mediation.

Arbitration is a form of alternative dispute resolution.  What that means is that it offers an alternative, outside of court, to resolve a dispute.  Increasingly in recent years, arbitration has gained favor as a tool to resolve Massachusetts personal injury claims. 

Arbitration is a voluntary and mutual decision that is reached by a personal injury claimant and an insurance company.  Before the actual arbitration, the plaintiff’s attorney (who represents the injured victim) and the defense attorney (who represents the insurance company) will agree on a particular arbitrator.  All Massachusetts personal injury attorneys have a few favorite arbitrators who they feel comfortable with.  After agreeing on an particular arbitrator, the parties must then agree on the parameters of the arbitration.

One way of doing that is to reach a high/low agreement.  This is a set of numbers that control the parameters of the arbitration award.  The plaintiff’s attorney will want the high/low numbers to be as high as possible, while the defense attorney will obviously want to keep the agreed upon high/low numbers as low as possible.  With the high/low agreement, both parties feel comfortable in knowing they have minimized their respective risk and exposure since the result of the arbitration will be binding on the parties.

Most Massachusetts personal injury cases settle with the insurance company who insured the person who caused the accident.  This is often done through negotiation between your Massachusetts personal injury lawyer, and the adjuster from the insurance company. 

I have found mediation however to be an increasingly effective mechanism for resolving Massachusetts personal injury claims that won’t settle.  You can mediate a Massachusetts injury case even if your case has not yet been filed in court.  In fact, mediation can save you a great deal of money because trying a Massachusetts bodily injury case is usually expensive.  Mediation is not only cheaper than court, but is also less risky because instead of facing a judge or jury, you face a mediator who has no authority to bind the parties.  You can expect to pay about $250 – $400 an hour for a good Massachusetts mediator.  More times than not, with the right mediator, and with the right attitude and approach to mediation, personal injury claims can settle through mediation.

I invite you to contact me with any Massachusetts personal injury law questions you may have.

Mediation provides a good forum for resolving Massachusetts personal injury disputes.  Often the attorney representing the accident/injury victim is unable to settle a personal injury claim with the insurance company.  The attorney at that point may institute litigation.   But litigation is adversarial, costly, takes too much time, and is entirely unpredictable.  Often, it is mediation that provides a better alternative for resolving Massachusetts personal injury claims.

Here are some of the advantages of mediation that litigation does not have:

1.  The injury victim can have input and share what his thoughts are about the claim, and that increases the chances of satisfaction for him;

As I have stated before on this blog, Massachusetts personal injury claims usually settle outside of court with the relevant insurance company.  However, there are times when claims do not settle.  The claimant (or the claimant’s attorney) has three alternatives in that situation:

1)  Mediation;

2)  Arbitration;

Massachusetts personal injury claims are oftentimes mediated when settlement of the claim has proved elusive.  This is because of the flexibility that mediaton affords.  For example, mediation is non-binding.  The mediator has no authority to mandate any particular disposition of the mediation. All the mediator can due is create an informal arena that encourages discussion between the parties, and hopefully, resolution of the parties dispute can be achieved. 

Oftentimes, mediations are used in Massachusetts personal injury claims.  If your personal injury claim is scheduled to be mediated, I encourage you to read the following that I found on Nolo.com that provides a good description of the six stages of most mediations:

Mediator’s Opening Statement: After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.

Your personal injury attorney first tries to settle your case with the relevant insurance company.  Usually, claims are settled without the need to file a lawsuit.  But, with insurance companies becoming more and more tight with personal injury settlement offers, it sometimes becomes necessary to litigate the claim.

There are respective advantages and disadvantages of opting for arbitration or a jury trial.  The following excerpt was provided courtesy of www.uspersonalinjurylaw.com and it provides a good description of the pros and cons of arbitrations and jury trials:

• Generally, jury awards are higher than arbitration awards. Jurors tend to identify more with accident victims and be more emotional than arbiters who may have seen many similar cases. However, there is always a risk that a jury award can be disappointingly low. Other problems with jury trials is the length of time until a case is decided, the cost of trial preparation, and the inconsistency of jury awards. After a lawsuit is filed, it can be over a year until the trial takes place. Although an arbitration generally means lower injury awards, the awards are usually more consistent and quicker to obtain.

Following up on previous posts regarding mediation and arbitration of personal injury claims in Massachusetts, I found the following article on findlaw.com that does a good job of explaining the respective processes of each. 

Once again I invite you to contact me with any questions you have about mediation and arbitration and how they can be used to resolve personal injury claims in Massachusetts.

Arbitration, like mediation, has become a popular means of resolving personal injury claims.  Arbitration can be used to resolve auto accidents, slip and falls, dog bites, and basically any other personal injury claim, assuming of course that the involved parties are willing to arbitrate the claim.  Please note that arbitration can be used not only for personal injury claims, but for almost all other legal disputes as well.

The following provides a good explanation and overview of the arbitration process, please click here for the link, provided courtesy of mediate.com.