Alternative Dispute Resolution: Personal Injury Cases and Beyond

In Injury lawyer, Personal Injury, Personal Injury Claimsby johncannon

What is Alternative Dispute Resolution?

Alternative Dispute Resolution (ADR) is a means to solve legal issues outside of a court setting. Litigating, family law and personal injury cases in Oklahoma, can be expensive, burdensome, and lengthy, but ADR presents a streamlined and cost-conscious opportunity for the parties to avoid court and still solve their problems. Additionally, where courts are structured and follow certain rules, parties can have more flexibility in an ADR setting to set their own schedules and rules between the parties.

Only 2-3% of cases are settled in court—the other 97-98% are settled out of court using one of these mechanisms. ADR is widely used because it can be used in multiple settings. Parties can write dispute resolution clauses into their contracts, it can be ordered by the courts, or parties can agree to do it themselves.

Selecting the Appropriate Method

There are multiple methods available to settle a legal dispute out of court, but it can be tricky to determine which method is best for your case. For this reason, it is important to talk to your attorney and determine which ADR method will give you the best outcome in your case. The method that is best may depend upon your personal needs and the nature of the dispute, i.e. personal injury litigation, such as a motorcycle accidents, require a different type of ADR than a divorce case with minor children. Important factors to determine whether arbitration, mediation, or litigation is appropriate for your case includes:

  • Whether the dispute should be handled in a private or public setting
  • Whether an informal setting is more advantageous
  • How flexible you would like the rules to be
  • How much time and money you have to handle the case
  • Whether you do or do not want personal control over the dispute outcome
  • Who the opposing party is in relation to yourself

Sometimes, the most appropriate place for a dispute is the courtroom, but participating in ADR allows parties the option to take more control over the legal process. Talk with your Oklahoma personal injury lawyer or family lawyer about participation in different ADR methods to determine how to get the most value out of your case.

ARBITRATION

What is Arbitration?

Arbitration is a process where a neutral third party, called an “arbitrator” hears arguments and evidence from both parties and then decides the outcome of the issue. It is a voluntary process but both parties must agree to arbitration before they can do it, parties are not forced into participating in arbitration in most cases.

Arbitration has many advantages besides being less expensive and quicker than a personal injury trial. One of the most important advantages is that it generally releases the parties from the formalities of a courtroom setting, particularly regarding the rules of evidence. Parties are still able to present evidence and make arguments, but the parties can essentially make their own rules.

Additionally, many parties choose arbitration in Oklahoma personal injury cases, because it is private, meaning your injuries and issues in your case are not out in the public record. This differs from personal injury litigation as sometimes litigation results in parties’ private information being brought out in court or in depositions. If personal injury parties decide to arbitrate, they can keep the details of the dispute out of the public record and both parties’ private information will be kept private.

Another advantage to arbitration is that the parties can decide on who their arbitrator will be, and whether the final decision of the arbitrator will be binding or not binding. In binding arbitration, parties will agree to accept the arbitrator's decision and generally give up their right to appeal that decision, i.e. the decision of the arbitrator in a personal injury case will be binding. This is effective for parties who just want the issue solved and do not want there to be any continuation. Nonbinding arbitration is especially powerful, because it means that the parties may request a trial if they do not agree with the arbitrator’s decision—effectively giving them a second chance if their first shot doesn’t hit a bullseye.

What Controls the Arbitration?

Arbitration rules and processes vary widely. Usually, the parties have a contract that will specify the rules and timelines that will be applied in a dispute. When parties operate under a contract, the rules specified therein should be considered for the exact procedure governing a dispute.

When can I Arbitrate my Legal Dispute?

All parties can agree to arbitrate their legal issues, but they both must agree to do so. Both an injury victim and the defendant or responsible party has the right to go to court. Therefore, both sides of the dispute must agree to go to arbitration. This agreement can be met either before or after a legal dispute. Agreements to arbitrate made before a dispute arises are typically found somewhere in a written contract agreed to by both parties. In fact, consumers every day agree to resolve potential legal problems via arbitration in the course of their every-day transactions through fine print disclaimers or notices on consumer websites, which may contain agreements to resolve any disputes by arbitration, and many consumers agree to it without even knowing.

Who can be an Arbitrator?

Generally, anyone can be an arbitrator, since there is not process that a person must go through in order to be one. The only requirement is that both parties must agree the person who is selected. Parties can even agree on a mutual friend to arbitrate their agreement, however that is not, if at all, common. More typically, the parties have a contract that contains an arbitration clause which stipulates in advance who will be an arbitrator or how that arbitrator will be selected.

A typical arbitrator is a neutral third party or parties who usually know the law with respect to the dispute at issue, such as a retired judge or an expert in the disputed area. There are also professional arbitrators who can be selected from the American Arbitration Association (AAA). The AAA provides a directory of arbitrators who are experienced and generally reliable if parties cannot agree on a common arbitrator. The benefit of selecting an arbitrator from the AAA is that they will likely be truly neutral and have no connection to the parties while still being informed on the disputed issue.

Arbitration is sometimes conducted by a panel of arbitrators, and sometimes conducted by just one arbitrator. In both cases, however, the selection process is typically outlined in a contract and subject to input from both parties.

What does Arbitration look like in a Personal Injury Case?

A truck driver is employed by a trucking company and gets injured on the job after the company truck’s brakes fail, causing him to crash into a bridge. The employee seeks to sue the company for negligence because they failed to perform standard brake checks on their trucks.

First, the employee hires a lawyer who is experienced in personal injury cases. After determining that arbitration is the quickest and most cost-effective method to settle the dispute, the lawyer drafts a written demand for arbitration and sends it to the trucking corporation. In this demand, the lawyer outlines the basis for the dispute and describe the parties, dispute, and type of relief sought.

The trucking responds can either agree to arbitrate or disagree and allow the dispute to continue to trial. Since arbitration allows for discretion and is less expensive, the trucking company agrees to arbitrate the case. Once both parties agree to arbitrate, they mutually select an arbitrator or a panel of arbitrators. They agree on a former judge who worked on a lot of personal injury cases.

After selecting their arbitrator and agreeing on how the arbitration will proceed, they have a hearing. The parties make their opening statements and the arbitrator hears limited evidence and testimony during a hearing. After hearing all of the arguments the arbitrator makes their final decision that the trucking company was negligent, and the driver suffered $5,000 worth of damages. Since that parties agreed that the decision would be binding, the decision stands and the driver is entitled to enforce that judgment.

See the 11 Step Process of an Oklahoma Personal Injury Automobile Accident here:

What are the Two Types of Arbitration?

  • Private Arbitration Private arbitration, is generally a contractual arbitration, whereby the parties agree to enter into a relationship in anticipation that a dispute will arise. In light of this anticipation, they determine that the courts are not an appropriate place to settle any future disputes and decide to arbitrate. Among other things, these agreements will identify the person who will serve as arbitrator. A private arbitrator's power derives completely from the arbitration agreement, which may also limit the issues the arbitrator has authority to resolve. The only limit on private arbitration agreements are statutes which govern private arbitration and set forth criteria that must be followed before an arbitration agreement will be binding on both parties and enforced by a court. So long as the statutory criteria is satisfied, a court will deem the arbitrator's decision final and enforceable, and the losing party may only appeal the decision by showing fraud, misrepresentation, arbitrariness, or capriciousness by the arbitrator.
  • Judicial Arbitration Judicial arbitration is a non-binding form of arbitration, usually mandated by statute, court rule, or regulation, which means that any party dissatisfied with the arbitrator's decision may choose to go to trial rather than accept the decision, but they must do so within a specific time period. This is to avoid parties coming back years after the arbitrator’s decision to appeal, and the result is that the arbitrator’s decision is binding and just as enforceable as a private arbitrator's decision. Because judicial arbitration is mandatory but non-binding and is usually ordered for cases where parties are likely to settle on their own. This allows backlogged courts to free up docket space.

MEDIATION

What is Mediation?

Mediation is another kind of ADR which consists of negotiations that are assisted by a neutral party to facilitate a voluntary, mutually acceptable agreement. In mediation, the third party does not participate by deciding the outcome, but by helping the parties reach a decision themselves. The mediator assists in identifying issues, exploring possible bases for agreement, discussing the consequences of not resolving the dispute, and encouraging the parties to compromise where necessary.

If the parties have a close relationship, such as parents who are trying to reach a child custody agreement, they may choose mediation because it promotes communication and cooperation, and preserving their relationship is important. Where the parents do not choose mediation on their own, the court can also require them to participate in mediation but does not require that they come to an agreement. The ability for these parties to reach their own agreement can set an important precedent that they are able to reach agreements on their own and may prevent further litigation in future disputes.

Parties may also choose mediation because it is informal and inflexible. Since the parties are negotiating the result of their own dispute, they are not limited by court formalities and have the most control in the outcome. Additionally, similar to arbitration, mediation is private and confidential, which avoids public disclosure of any intimate, embarrassing, or otherwise private information of the parties.

What are Conflicts are Commonly Mediated?

  • Consumers and merchants
  • Landlords and tenants
  • Employers and employees
  • Family members

Where can I find Mediation Services?

Attorneys and other professionals can provide private mediation for a fee. A good lawyer will assist and pick a mediator who is knowledgeable about the subject matter of the dispute, so they are more capable of getting the parties to reach an agreement. It is important to find a fair and reasonable mediator who has the appropriate credentials and qualifications. Most lawyers have mediators that they commonly use and are familiar with the dispute at issue.

Some courts may also keep lists of mediation services that they commonly use. Mediators qualified under the District Court Mediation Act or certified pursuant to the Dispute Resolution Act meet statutory standards of training and experience. Public Oklahoma mediation services are available through Early Settlement Regional Centers located throughout Oklahoma, and on the OSCN website here: www.oscn.net/static/adr. The program provides the services of volunteer mediators who are trained and certified and are available at minimal or no charge to help resolve disputes.

How Does a Typical Mediation Session Work?

First, a mediator sits down with each party and their counsel (if represented), and describes the process and sets the ground rules. The parties or their attorneys are given the opportunity to explain their view of the dispute in an attempt for each side to better understand the other’s point of view. Sometimes the mediator will meet separately with each side before or during the mediation. This allows the mediator to address emotional and factual issues as well as allow time for receiving legal advice from the attorney.

Once the parties understand the opposing side’s situation, the mediator begins to make agreements between the parties, which ultimately leads to a resolution. Unlike litigation where the courts can only award damages to redress harm, the resolutions reached in mediation can be creative. This is most effective in cases where money is not the object of a client’s needs. For example, if a man is in mediation for wrecking his sister’s car, which belonged to their late father, they can settle the case by the brother agreeing to give the sister their father’s vintage coin collection. This is possible because the sister didn’t value the car’s worth, but her emotional attachment to her late father. This emotional harm is rectified by replacing the car with other property that reminded her of her father.

The benefit of a mediation agreement is that most people uphold it because they were a part of making it, and it can become a contract and be enforceable. If there is no agreement, however, no rights are lost and arbitration or litigation are still available.

What does the Mediation Process look like in a Wrongful Death Action? A person is drunk driving and accidently hits a pedestrian. The pedestrian’s family sues the driver in a wrongful death action by filing a complaint with the court and serving it on the driver. The driver hires a lawyer to represent her.

An experienced lawyer will recognize that the plaintiff family is grieving and has already spent a large sum of money on funeral costs, and it likely not looking to enter into a lengthy litigation battle over an already emotionally taxing situation. They lawyer offers to enter into mediation with the family to see if they can reach an agreement.

Through thorough investigation and gathering all of the facts surrounding the incident, the lawyer is prepared to negotiate a settlement with the family. The family, the family’s lawyer, the driver, the driver’s lawyer, and a mediator meet in the courthouse conference room to discuss avenues to resolution. The mediator is able to appeal to the family’s grief and provide understanding, and the driver is able to show her remorse for the situation. Since the mediator was able to get to the heart of the issue—that the driver’s family wanted an apology and recognition that their loved one was harmed, the parties settle for a small sum and an agreement that the driver will do community service for a local organization that helps prevent drunk driving.

Contact – Cannon & Associates: Oklahoma Advocates

Experience matters when you are seeking an alternative dispute resolution method in Oklahoma, especially in your Oklahoma personal injury case. It is important to know the Oklahoma personal injury law firm you hire is dedicated to your cause and versed in all aspects of dispute resolution and personal injury law in Oklahoma. Cannon & Associates is dedicated to Fierce Advocacy and will fight for you, whether you decide to litigation, arbitrate, or mediate your personal injury or other civil lawsuit. Sometimes, that can be a tough decision to make but Cannon & Associates is here to support and guide you through all of your options, from beginning to end. We are dedicated to helping you resolve your dispute in the most advantageous setting and are ready to help you get the relief you need. Contact Cannon & Associates to protect your rights and fight for your case in Oklahoma. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.