As the Court system continues to slow down due to budget cuts, a focus on the criminal cases and an overall delay in getting to trial; plaintiff’s and defendants have been using the private mediation and arbitration process more frequently with great success.
By way of background, an automobile or premises accident in New York can take approximately 4-5 years to get from inception to a trial. In fact when all sides agree that the legal discovery is complete and request a trial, most counties schedule the trial for 18 months out and often 24 to 36 months is not uncommon. Furthermore, while on the trial calendar, a pre-trial conference can be so limited as the court calendar is full and each side might get 3-5 minutes to discuss the case.
The result in this delay of justice really hurts the plaintiff, the injured party, because the defendant or insurance company, can know that their ultimate obligation to pay fair and reasonable damages will not be upon them for years to come. This results in low ball offers, and a general lack of concern for resolving claims amicably.
However, when a Plaintiff can both move the case through the court system efficiently, and also provide the defense with a clear picture of how the case will turn out; the defendant and their insurance company can and will turn to mediation or arbitration to resolve disputes. In New York there are many services and the two primary companies are National Arbitration and Mediation (NAM) and Judicial Arbitration and Mediations Services (JAMS).
Mediation is a non-binding process where the parties mutually agree to hire a retired Judge, Court Attorney, or private attorney with an expertise in the field and reserve at least 2 hours of their time to present the case. The mediator will receive submissions from both sides and can have a full understanding of what the case is about. With all parties participating and attending, the mediation can often result in a settlement. If not, the parties often learn of the weaknesses in their case and can then reconsider settlement options or prepare for the trial in a different format. As I have experienced in handling over 200 mediations, you can never waste your time as you will always gain some advantage for your client; whether an offer or more insight as to the defense position.
Should the parties feel that full resolution can be placed in the hands of the mediator, the parties can mutually agree to go to binding Aribtration in the same format. The major difference is that here the private mediator/arbitrator will decide all issues including liability (fault) as well as the damages (value of the injury and ecomonic damages). Such finding is binding on all parties. Privately and without the Arbitrator knowing the parties can enter into a high-low agreement whereby they agree to a low award, a high award. Any award between is paid and an award outside the parameters of the high low is paid at the high or low respectively. This can give each side further confirmation of how the outcome will be.
At Leav & Steinberg, LLP we prepare each case as though it’s going to trial and often use the mediation process as a stepping stone towards future resolution. When in the best interest of our client, we will consider binding arbitration and this has resulted in many successful outcomes for our clients without the additional delay and uncertainty of the Court system.
In just the last six months my firm has successfully mediated cases and obtained results in excess of 5 million dollars. See our results page.
In addition in just the last month we have arbitrated matters that have resulted in fair and reasonable awards where the case was still at least 2 years or more from trial.
