Dispute Resolution – Alternatives to Trial
By Richard H. Adler
April 1, 1991
The notion that taking someone to court as the first step to righting a wrong is deeply ingrained in our culture. The proliferation of courtroom television dramas and celebrity news notes about Melvin Belli and “Cowboy” Jerry Spence continue to perpetuate the myths that an attorney’s day is spent in court, and that all good attorneys argue like Clarence Darrow and win like Perry Mason.
Alternative Dispute Resolution (ADR) is changing the day-to-day practice of law. ADR refers to an ever-widening array of alternatives to traditional trial for the resolution of legal claims. The concept encompasses mediation, arbitration (in a variety of forms), settlement conferences, mini-trials, and conventional settlement negotiation. As it is utilized by a growing number of law firms, insurance companies, and other businesses, case resolution is rapidly becoming a matter of selecting the right option or strategy rather than automatically filing a lawsuit.
A vast majority of your patients, while they may be angry and depressed about having been injured as a result of someone else’s negligence and the domino effect such injuries have on their lives, only want reasonable compensation for their losses, for their cases to be resolved quickly, and to avoid going to trial if at all possible.
Our experience is that doctors are also very interested in seeing cases resolved short of trial:
- Litigation is stressful. Many plaintiffs and their doctors view the prospect of testifying at trial about as appealing as swimming in an alligator tank.
- Litigation is inconvenient. Delays and last minute rescheduling are inherent even in the best managed trial.
- Litigation may mean carrying a patient’s account for a longer period of time than if the case is settled before a lawsuit is filed.
- Delay in compensation of a patient’s damages often means that a patient goes without the resources to pursue his or her treatment of choice and/or obtain much needed long-term maintenance care.
The following is a summary of ADR methods utilized by Adler Giersch, P.S., to ensure equitable and prompt resolutions of your patients’ personal injury claims.
NEGOTIATIONS: Preparation is as important to successful claim negotiations as it is to successful litigation. Liability issues, if any, must be investigated fully and addressed early in the claim. A timely assessment of a case’s strengths and weaknesses must be done, including complete documentation of injuries, determining the biomechanics of the accident and resulting injury, and preparation of a comprehensive settlement package. Settlement proposals, offers, and counter offers are communicated in writing, over the phone, and in face-to-face negotiations. Note: Washington case law provides that evidence of settlement offers and discussion is not admissible at trial.
MEDIATION: When a case is submitted to mediation, the parties voluntarily agree to participate in structured settlement negotiations facilitated by a neutral expert. The mediator is neither a decision-maker nor an advocate. Rather, the mediator helps to establish a conciliatory environment, facilitate an organized review of complex issues, narrow the issues in dispute, soothe egos, and confidentially evaluate strengths, weaknesses, strategies, and the bottom line for each side. A mediation typically begins by each side explaining its position and describing the evidence that will be offered if the case proceeds to trial. The mediator then meets with each party in private caucus and employs shuttle diplomacy to communicate offers and counter-offers. Once an agreement is reached, the parties are brought back together to recap the agreement and finalize any remaining details.
Advantages to mediation include:
- Cases can be scheduled for mediation in a matter of weeks, and are usually resolved in 1/2 day.
- Substantial savings in litigation costs. Mediation costs are generally shared between the parties, and average $400.00 to $600.00.
- Mediation addresses unrealistic claims or expectations – it is difficult to sustain an unreasonable position face-to-face. In addition, mediation provides a risk-free opportunity to evaluate strategies with the mediator taking the role of educator, devil’s advocate, and “agent of reality.”
- The process is flexible and can be tailored to meet the needs of the parties and the particulars of the case.
- Mediation is successful. Nationally, 80 percent of all mediated cases settle before going to trial.
- Clients report a high level of relief and satisfaction in that they have been “heard” and given an opportunity to make a direct appeal, maintain control, and participate fully in the proceedings.
ARBITRATION: This option is basically a substitute for trial, but unlike a trial, can be set for a date, time, and location convenient to the parties. As in litigation, the parties attempt to persuade a neutral decision-maker that he/she ought to prevail. Evidence, testimony, and arguments are submitted to an arbitrator(s), who is empowered to render a binding decision called an award.
Voluntary arbitration is supported by federal and state statutes that make arbitration awards binding and enforceable, except upon the extraordinary showing that an award was procured by fraud. Voluntary arbitration can be entered into by agreement or as provided for in a contract.
Mandatory arbitration is a statutorily created court case management tool that exists in many counties of our state. If a plaintiff claims damages of a certain dollar value or less, then the parties must first go through arbitration before having the right to trial. In King, Pierce, and Snohomish Counties, the mandatory ceiling is $35,000.00; the amount varies in other counties. An arbitration can generally be scheduled 4 to 6 months after filing a lawsuit, whereas a trial date often takes 18 to 24 months. Arbitrations are much less expensive than trials in that doctors and other experts can testify by record and parties have more control over the scheduling of live testimony. Parties also have a right to appeal an arbitration award to trial. However, there is a disincentive in that the appealing party must improve their position at trial, otherwise they must pay the other party’s attorney fees and costs of taking the case to court.
PRIVATE SETTLEMENT CONFERENCES: A retired judge meets with the parties, reviews the case, and renders an opinion as to a jury verdict range if the case should go to trial. This is an advisory opinion not binding on the parties, and a low-risk opportunity for the parties to further evaluate their positions and the potential cost of proceeding to trial.
As a health care provider, there are many ways you can assist in resolving cases short of trial:
- Urging your patient to seek the advise of legal counsel early in the process. The earlier an attorney becomes involved in a case, the better he/she is able to protect the patient’s rights and obtain prompt and reasonable compensation for the patient’s losses.
- Keeping accurate, legible, and complete records.
- Making appropriate referrals to specialists in other fields.
- Making referrals for second opinions.
- Advising the attorney or his/her assistant when the patient is approaching maximum improvement or pre-injury status.
- Contacting the attorney or his/her assistant if the case appears to be particularly complicated or if treatment will be protracted.
- Contacting the attorney or his/her assistant if a client is not complying with treatment recommendations.
- Responding to requests for narrative reports within 30 days.
- Reviewing the client’s medical records, including any prior records or records regarding a subsequent accident, before meeting with the attorney to prepare for a deposition.
- Asking the attorney to give you all relevant information, including facts of the accident, diagnostic studies, and any prior, concurrent, or subsequent treatment records that may have a bearing on your opinions and treatment.
- Preparing for your deposition. A stellar and knowledgeable performance will facilitate settlement pre-trial.
- Resisting the temptation to tell your patient what you believe his/her case is worth, as a client can get locked into a number before he/she has all of the facts.
Despite all of the ADR options available, there are times when a lawsuit must be filed:
- If additional “discovery” (informational exchanges governed by court rules) is necessary.
- To encourage the use of ADR methods.
- When approaching the statute of limitation (deadline for filing a lawsuit).
- To utilize mandatory arbitration.
- To make new law.
- To challenge bad/outdated law.
- When a large number of people are damaged, giving rise to a class action.
Reality is that a lawsuit costs money and time, but when a fair outcome cannot be achieved by other means, the right to trial is essential.