All personal injury firms rely on negotiation, mediation and arbitration. While these three mechanisms have some similarities, each functions in a different way. The good personal injury attorney will use all three depending on what will best serve a client and case. Here is a primer on these three tools of the trade.
Negotiations in a Personal Injury Case
Negotiations are direct communications between parties in an attempt to settle a case. Negotiations are the most common form of dispute resolution and are almost always used before turning to other dispute resolution techniques. Negotiations can take many forms:
- A telephone conversation with an insurance adjuster
- A meeting with insurance company representatives
- A discussion with an opposing lawyer on the phone or in court
- A conference call with a defense lawyer and insurance adjuster
Negotiation skills are among the most important that a good personal injury firm can offer a client. We’re fortunate to have two seasoned and expert negotiators. Carol L. Schlitt has been negotiating settlements for 27 years and has been recognized for her negotiation skills by other attorneys who have retained her to negotiate their cases. Our Director of Client Services, Mark X. Cronin, studied negotiations skills at Harvard’s Kennedy School of Government and has been a lead negotiator on everything from multi-million dollar contracts to labor agreements to personal injury settlements.
Mediation in a Personal Injury Case
Mediations are talks to resolve a dispute that involve a neutral third-party who works to broker an agreement. Formal mediations usually involve selecting a mediation company and a mediator that both sides approve. The mediators are often retired judges or attorneys. Sometimes an informal mediation will occur at a pre-trial conference when a judge will try to broker a deal between opposing parties before a case goes to trial. In doing so, the judge acts as a mediator.
Mediations are non-binding. A mediator can make recommendations, but both sides are free to reject the recommendations of the mediator.
Mediations can succeed only when both sides are truly interested in reaching a settlement. Therefore, we will only agree to mediation if the defense has demonstrated a good faith effort to resolve a case. We generally will require that the defense demonstrate some willingness to address our settlement demand before we agree to mediation.
We then must agree on a mediator. Mediators should be neutral, but many have a tendency to favor insurance companies. We keep track of all active mediators and will only agree to a mediation with a mediator we know to be fair.
If interested, you can email a request for a free copy of our Guidelines to Mediation in a Personal Injury Case.
Arbitration in a Personal Injury Case
Arbitration looks like a mediation with one significant difference: the results of arbitration are binding. In arbitration, both sides will agree on a neutral, third-party arbitrator. The arbitrator may try to broker a deal, but if he or she does not, the arbitrator will issue a ruling that is binding on both sides. We tend to avoid arbitration because it is binding and denies us the flexibility to ensure that we maximize compensation for our clients. There are times when the terms of an insurance policy require that we enter into arbitration. We will always endeavor to negotiate a favorable resolution before undertaking an arbitration.
If you or a loved one has been hurt in personal injury matter, you may want to consult a New York personal injury attorney. We would be glad to answer your questions and assist you. The consultation is always free.
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney. Remember, past results do not guarantee similar outcomes in the future.
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