Litigation (i.e. filing a lawsuit in state or federal court) that ultimately leads to a trial by jury or bench trial overseen by a judge is the most common, and well-known, legal mechanism for the pursuit of financial restitution on behalf of an injured party. Nevertheless, there are other legal mechanisms that can be utilized to pursue compensatory damages. These mechanisms are often described as forms of "alternative dispute resolution." Arbitration is an example of a type of alternative dispute resolution.
In the context of a personal injury case, an arbitrator will serve as an impartial third party tasked with deciding whether to award compensatory damages, and the amount of damages to be awarded.
Understanding an Arbitrator's Role in the Proceedings
The role of an arbitrator is akin to the role played by a judge. The arbitrator is tasked with reviewing the relevant evidence, deciding whether you (the plaintiff) are entitled to recover compensatory damages and, if so, the amount of damages to award.
Overview of Arbitration Proceedings
Arbitration proceedings are similar to a trial but generally less formal. If the arbitration is conducted in person, then your Virginia personal injury attorney, along with the attorney representing the defendant, will submit relevant documents to the arbitrator, make an opening statement, and call witnesses live or via a video conferencing platform. Finally, each attorney will get the opportunity to make a closing argument.
During the arbitration, the arbitrator may also ask the parties and witnesses questions. After the closing arguments, the arbitrator will generally advise the parties when to expect a final decision.
In most instances, an arbitrator will provide a written decision and sends it to both your personal injury lawyer and the defendant's lawyer.
When to Consider Using Arbitration
Arbitration is not necessary, or even appropriate, for every case. Deciding whether to arbitrate or not can be quite complicated. Ultimately, you and your injury attorney need to discuss using this form of alternative dispute resolution, weigh the pros and cons, and determine whether to move forward in the process. Oftentimes, the process of reaching an agreement on whether to agree to arbitration, along with the specific parameters of the arbitration proceedings, can entail a lengthy negotiation.
What Must Be Agreed Upon for an Arbitration to Occur
The following prerequisites must be met in order for arbitration to move forward:
Both you and the defendant agree to participate in the arbitration proceedings.
Both you and the defendant agree to the applicable rules of evidence.
Both you and the defendant agree upon who will ultimately serve as the impartial arbitrator.
- Both you and the defendant agree on who will pay the fees to the arbitrator's services (oftentimes, the parties agree to split the fees 50/50)
- Both you and the defendant agree before the proceedings commence on whether the arbitrator’s decision will be binding or non-binding. If the parties agree that the arbitrator’s decision is binding, then the arbitrator’s decision is final (i.e., there is no opportunity to appeal and no chance to change the arbitrator’s decision). If both parties opt for non-binding arbitration, then the arbitrator can only recommend (and not impose) a decision as to whether you should be awarded compensatory damages.
Speak to Your Personal Injury Attorney
When it comes to deciding whether to agree to arbitration, your personal injury attorney is likely the best resource for information and advice. Their familiarity with litigation, along with various methods of alternative dispute resolution, can be put to use in assessing whether it makes sense - in your case - to engage in arbitration. The personal injury lawyers with Shapiro, Washburn & Sharp have successfully secured compensatory damages on behalf of clients in arbitration proceedings. If you have any questions, contact our office for assistance.