Practice Pointer: Consider Alternative Dispute Resolution (“ADR”) in Personal Injury Cases.

When working to resolve a personal injury claim, plaintiff’s counsel and their client should consider Alternative Dispute Resolution (“ADR”).

               Litigation is expensive for both sides, plaintiff and defense.  However, it is often personally more expensive for the plaintiff and plaintiff’s counsel, who is likely to be paying the disbursements “up front” with reimbursement of those disbursements expected after settlement (hopefully).  Alternative Dispute Resolution (“ADR”) often offers an excellent means of resolving almost any personal injury claim without the need for trial. 

               Of course, there are two (2) general ADR mechanisms available in most personal injury cases: (i) mediation; and (ii) arbitration.  In the “old” days, when juries returned verdicts generally more favorable to injured plaintiffs, lawyers for injured plaintiffs resisted or rejected ADR.  But no more.  Now both sides in a personal injury case, plaintiff and defense, are open to ADR to settle claims.  A plaintiff’s attorney should not be afraid to broach the ADR issue with the other side (once plaintiff’s counsel feels comfortable and has all the documents and records necessary to prove the claim). 

               Remember that a mediation usually comes first, but does not have to.  Even if a mediation is unsuccessful, it may create an opportunity to set high-low damages parameters agreeable to the parties for a subsequent mandatory arbitration.  Know that a well-crafted and complete Case Resolution or Settlement Brochure sent to insurance defense counsel or claim representative can readily double as a mediation or arbitration submission -- which provides good reason for plaintiff’s counsel to take the time to write out such a brochure in detail, with full exhibits. More on that in a later blog post.