Bagen Law Firm | March 8, 2023 | Personal Injury
Suppose you or someone you love suffered an injury at the hands of a negligent, careless, or intentional person or party. In that case, you deserve compensation for your injuries. Civil personal injury laws allow you to seek financial recovery through the civil court system. However, most personal injury cases settle before going to court. They can do this using alternative dispute resolution (ADR).
Your personal injury attorney should be a seasoned litigator who is also well-versed in many forms of alternative dispute resolution. With many alternatives to trial, your lawyer can often resolve your claim without going through the litigation process. Many firms use different approaches to ADR to help settle personal injury claims.
What is Alternative Dispute Resolution?
Various alternative dispute resolution forms exist that can help in many legal disputes. ADR is another way to resolve legal matters without going to court. For example, uncontested divorces are often the product of ADR, and those with business disagreements frequently turn to ADR. All personal injury cases have the potential to be resolved through ADR, while a small percentage will go to court. You can pursue ADR in any of the following types of personal injury claims:
The most common forms of ADR for personal injury cases are:
- Car accidents
- Truck accidents
- Motorcycle accidents
- Scooter and bicycle accidents
- Pedestrian accidents
- Dog bites and animal attacks
- Premises liability—such as a slip and fall
- Product liability
- Construction accidents
- Workplace accidents
- Medical malpractice
- Wrongful death
A neutral party, referred to as an “arbitrator,” hears each side’s arguments and evidence and then uses it to decide the outcome of the legal matter at hand. Arbitration is less formal than a trial, and the rules of evidence usually aren’t as strict.
In binding arbitration, parties agree to accept the arbitrator’s decision as final. As such, neither party typically retains the right to appeal an arbitrator’s decision. However, if the parties have agreed to non-binding arbitration, either one retains the right to request a trial if they don’t accept the arbitrator’s decision.
A neutral party, known as a “mediator,” helps the parties attempt to arrive at a mutually acceptable resolution in the dispute. Mediators don’t decide the case or who was right or wrong in the past like an arbitrator does. Rather, they help the parties communicate better so they can work towards settling the dispute themselves. The mediator helps everyone involved focus on the future and make their own decisions.
Mediation is particularly useful when family members, neighbors, or business partners have a dispute. However, it might not be a good choice if one party has a substantial advantage in power or control over the other.
In general, the parties can consider:
- Community mediators: Volunteer mediators approved to mediate with a Community Dispute Resolution Center.
- Roster mediators: Approved by one of the trial courts to mediate cases. The Statewide Mediator Directory provides a list of all roster mediators. You can also hire roster mediators privately.
- Other mediators: Parties typically select these mediators without a court’s referral. They may or may not be on a court roster. However, Mediators who don’t have a court referral aren’t subject to a court’s rules about mediation or compensation.
A judge or their representative meets with the parties and their attorneys in an attempt to settle some or all of the issues in dispute before a trial begins. The parties’ participation is limited, and the main objective is to narrow in on the issues in dispute. If a settlement conference is successful, a court case might be avoided or at least abbreviated.
In a neutral evaluation, a neutral party with subject-matter experience listens to condensed arguments and examines each side’s strengths and weaknesses. Then they offer an assessment of likely court outcomes to help encourage a settlement. The neutral evaluator can also give case planning guidance and settlement assistance if the parties consent.
The Benefits of Alternative Dispute Resolution
If you have an active personal injury claim, you might wonder if your case will settle. You are not alone, and a seasoned personal injury lawyer can examine the facts of your case in a consultation to help answer that question. Considering that about 95 percent of personal injury cases settle outside of court, chances are that yours will, too, although there are no guarantees. Settlements depend on many different factors about your claim and the insurance company.
What Is a Personal Injury Claim Settlement?
When a personal injury occurs and gives rise to a claim, it can end in one of two ways. Those who suffered an injury or property damage in the accident and the insurance company can agree on a settlement without using the legal system, or they can pursue a lawsuit in civil court. Anyone filing a personal injury claim should obtain representation from a well-versed attorney, whether they want to pursue a settlement or go to court.
Based on their knowledge and previous experience, lawyers know what your case should be worth. Without their input, you might settle your case for much less than you deserve. Your attorney can negotiate a settlement with the insurance company and their attorneys that is fair for you, and if not, they can pursue your claim through litigation in civil court.
Be aware that if you agree to a settlement, you will need to sign an agreement stating that when you receive the compensation, you will not sue for the same accident in the future. This is an agreement with prejudice and protects the insurance company from facing lawsuits because it agreed to settle the case with you.
Benefits of an ADR Settlement in a Personal Injury Case
One of the reasons that settlements are so prevalent in personal injury cases is that there are so many benefits for both the injured victim and the at-fault party or their insurance company when the case settles outside of a courtroom. When you hire a personal injury lawyer, they can provide you with reasons as to why you should or shouldn’t settle your case and how a settlement can benefit you.
For example, reasons one or both sides might want to consider a settlement in an injury case include:
- Quicker resolution of the case
- The injured party can receive their compensation sooner
- Less risk than taking the case before a judge or a jury
- It avoids a potentially emotional trial for the injured party
- Decreased legal expenses for both sides
Factors that Determine if a Settlement is Possible
When deciding to settle a claim after a personal injury, there are several factors that both parties must consider to determine if it is in their best interest to settle and what amount they are willing to settle for.
These factors include:
- The severity of injuries: More severe Injuries will garner a higher settlement. Usually, soft tissue injuries like bruising or sprains settle for less than injuries such as broken bones, damage to the spinal cord, or injuries that cause brain trauma, disfigurement, loss of mobility, or the permanent loss of a body part.
- Disruptions: Injuries that inhibit the victim from performing day-to-day activities or working will usually be more likely to settle outside of court as these injuries are generally easier to prove.
- Liability: If it is quite apparent that the other party is liable for the alleged injuries of the injured party, a settlement is more likely. If the defense knows their degree of liability, they will be more motivated to avoid going to court. Therefore, it is less risky for them to negotiate a settlement with you and your attorney than to leave the case up to a judge or a jury to decide.
- Publicity: If a case has the potential to give a person or a company negative attention in the news or on social media, the possibility of a settlement grows. The bad press is too costly for the other party to risk not settling.
- Litigation expenses: The costs of a lawsuit can quickly add up for both the at-fault and the injured party. If a case is already questionable for the at-fault party, they will usually be more likely to settle to help cut down on the entire price tag of litigating the case.
The Settlement Process
After you hire a personal injury attorney, they can gather evidence to support your claim, including:
- Medical records
- Medical bills
- Pictures of your injuries
- Photos from the scene of the accident/incident that caused your injury
- Witness testimony
Once they gather this information, your attorney can draft a demand letter. This letter will explain your injuries and the damages that you should be entitled to recover. When the at-fault party or their insurance company receives the demand letter, they will investigate your claim and decide if they want to accept or deny it.
If they choose to accept it, they will make a settlement offer, and both sides can begin negotiating what they believe to be a fair settlement. Depending on how long the settlement takes, you and your attorney might discuss employing a method of ADR.
Sometimes a settlement happens quickly, and other times, it is a longer process. However, some cases don’t settle until right before they are scheduled for trial or even during a trial.
Understanding the Statute of Limitations
Even if you intend to use ADR to settle your claim, you can’t wait forever to pursue your legal rights. For example, the State of Florida gives all personal injury victims four years from the incident that caused their personal injury to file a lawsuit. The court will likely toss out any cases filed after this deadline.
Ensuring you file your claim on time begins with hiring a knowledgeable personal injury attorney. The sooner you contact one, the sooner they can get started on your claim.
Four years might seem like a long time, but they need to understand and investigate your accident, track down the liable parties, build your case, and potentially even hire experts to testify on your behalf. They also need this time to work on using ADR methods to settle your claim, and if that fails, prepare your case for trial.
The Elements of Negligence
A valid personal injury claim involves all four elements of negligence. Therefore, you or your personal injury attorney will need to prove them to recover damages in your claim—even if you use ADR to settle your case.
These elements include:
- Duty: The other party owed you a duty of care, such as driving the speed limit or cleaning up a spill.
- Breach of duty: That party violated their duty to you.
- Injuries: You sustained injuries as a direct result of the breach of duty
- Damages: Your injuries caused your damages, such as lost wages, medical expenses, loss of enjoyment of life, and pain and suffering
Generally, the first two elements aren’t difficult to prove. However, it can be challenging to link your injuries and damages to the at-fault party’s actions or prove that they are real. An experienced personal injury lawyer is skilled in establishing all of these elements and can help ensure the best outcome possible in your case.
What is Your Case Worth?
This is a common question among those who sustained a personal injury and their families. When you first meet with a personal injury attorney about representing you, they can give you an estimate of what your case is worth.
This estimate depends on other recent cases in the area, the extent of your injuries, your medical bills, other related expenses, and:
- The value of the applicable insurance policies
- The strength of the evidence in your claim
- Your non-economic damages, such as scarring and disfigurement, humiliation, and mental anguish
- If there is more than one party liable for your injuries
Contact a Personal Injury Attorney Today
No matter what type of personal injury claim you have, a personal injury attorney can manage your settlement negotiations and use ADR to help r