Two tools in the medical malpractice lawyer’s toolbox are arbitration and mediation. These are alternative methods to resolve birth injury lawsuits without the costly expense of trial.
Arbitration is an agreement between the parties to submit their case to a neutral third-party for a binding decision. Arbitrators are oftentimes retired judges or well-respected lawyers.
The parties typically create an arbitration agreement to outline the terms, including how the arbitrator is paid, whether there is a right to appeal, and whether any confidentiality will apply to the decision. Many arbitrations are run like trials.
The evidence in an arbitration is often the same as in a standard trial, though the parties can make agreements for the purposes of expediency. For example, they may agree that deposition transcripts are admissible for any purpose (they are not typically admissible in that fashion). Some parties agree to submit expert discovery depositions and reports in lieu of expert testimony, which significantly cuts down on the costs of trial.
As with a bench (judge-decided) trial, the arbitrator will listen to the evidence and make a decision. Sometimes the decision will be immediate, and sometimes it will be written and delivered to the parties days or weeks after the arbitration.
Unlike arbitration, mediation is not binding. That is, the mediator will not make a decision about who should win the case; rather, the mediator will assist the parties and attempt to facilitate an agreement about settlement.
The parties will sometimes agree to a mediator (usually a retired judge or a well-known lawyer), though sometimes a mediator will be assigned by the court. Mediators have different styles, but in most cases the mediator will receive from each side a confidential mediation statement before the date of mediation. The mediator will examine case documents and evidence, and learn about the strengths and weaknesses of each side.
The mediator may speak directly to the insurance adjuster, doctor, and plaintiff (in the presence of their lawyers, of course). He may inform each side about the likely verdicts, and the risks of taking a case to trial. The mediator’s goal is to get the case resolved.
A mediation can last an hour or it may go on all day. Some mediations last multiple days. If a mediator is not successful at formal mediation, he may continue his attempts informally in the following days. Or, the groundwork laid by the mediator may help to get a case resolved through the work of the parties afterward.
For more information about mediation, arbitration and other methods of alternative dispute resolution, contact our birth injury lawyers at (440) 252-4399 or online. We work almost exclusively on birth injury lawsuits, and we will work to get you the best medical malpractice settlement or verdict possible.