A personal injury case refers to a legal dispute arising from harm caused physically or emotionally from an accident whereby an individual or entity is considered legally responsible for the incident. Anyone filing for a personal injury case is seeking compensation caused by the defendant. To resolve this type of case, the possible options include mediation or litigation. Understanding what is involved in both options is important before settling for a specific option. Consulting with a skilled personal injury lawyer can provide valuable insights and help you make the best decision for your case.
These alternatives are both legal processes that seek to solve personal injury cases with a key difference on how the procedure is handled. Mediation allows for settlement of disputes outside of court proceedings whereas litigation involves court hearings to determine a ruling. Other key differences include:
| MEDIATION | LITIGATION |
| Impartial third party is a mediator | Impartial third party is a judge |
| Cost effective | Can be costly |
| Less time consuming | Time consuming |
| The procedure is confidential | The process is open and part of public record |
| Flexibility in the decision making process (mutual agreement between involved members) | Decisions are made by the “book” according to the law therefore reducing flexibility |
It is important to note that both cases call for the services of an attorney. It is only through his or her services and consultation that a victim can decide upon which dispute resolution process to take up.
There are different factors to put into consideration when choosing between litigation and mediation. The following factors are key considerations for your case.
The complexity of the claim will determine the path to take. The more complex cases will call for litigation. For example, a case that involves multiple parties will call for court proceedings to first establish the at-fault party. Where legal issues are evident, it is advisable to avoid out of court settlement in an effort to ensure that all driving factors of the incident are put into place. The more complex cases call for court hearing and ruling because they provide clarity for all involved parties.
Where individuals do not want to spend too much of their time and finances in personal injury cases, it is highly recommended to settle out of court. Court trials tend to be time consuming and costly due to the different steps involved. In addition, they remain time consuming because you must wait in line before being slotted in for a hearing.
The relationship between the involved parties determines the path to take. There are instances where the involved parties know each other or that; they are related in one way or another. In such cases, where an individual may be keen to retain a positive relationship, mediation may be ideal because it involves less confrontational procedures.
Formal legal procedures may not be your cup of tea if you are not emotionally strong because of their confrontational nature and the publicity they attract. The faint-hearted will prefer mediation where it is private and confidential.
If you are looking to avoid public scrutiny, then individuals will avoid litigation where the procedure becomes a part of public court records. Mediation offers privacy and confidentiality of the case.
The mediation process only outcome is to compensate the victim financially for the injuries and/or losses. On the other hand, through litigation, not only does the victim receive financial compensation, but it also creates awareness to systematic issues. For example, a DUI case will only provide financial compensation when a mediator is involved. When litigation is applied, the offender will also receive punishment for the wrong doing.
Mediation vs Litigation in Personal Injury Case - The choice between the two options is crucial and it requires careful considerations of the different circumstances involving the personal injury claim. The decision making process is intriguing making it important to involve a lawyer.
With the help of an attorney, you will be able to assess any unique aspects of the case that may include:
After the evaluation of the above factors, an attorney may choose to start with mediation especially if they are looking to speed up the decision making process. However, in the event the negotiations do not seem to bear fruit, you can switch to filing in court with the help of your attorney. In some cases, a court case may seem appropriate right from the on-set. This possibility is the reason why you need to work with a professional for your case to reap the best.
Q: Is mediation legally binding?
A: Mediation just like litigation, is legally binding. While the process to achieving results or a solution may differ, mediation is legally binding. The parties involved must adhere to the settlement options provided and failure to do so will call for a lawsuit.
Q: Is it possible for a personal injury lawyer to help with mediation and litigation?
A: The best alternative is to ensure that you involve a personal injury attorney right after your accident to help you resolve your case. In both cases, your attorney will prepare, guide and advice you through each step with the key objective of attaining fair settlement.
Q: Do I need an attorney for mediation processes?
A: Many individuals believe that they will need an attorney only when they are required to go to court. This belief has led many to losing out on fair compensation and it is therefore important to involve the best personal injury attorney. An attorney will prepare you before starting the procedure, thus ensuring that you have what you need to receive fair and just compensation. He or she will also help to ensure that a settlement agreement is transparent and without any hidden clauses. There are cases where your attorney will propose proceeding to trial such as when the settlement offered is unfair.
Q: What are the benefits of litigation?
A: The advantages of going through with this process include:
Q: Can I represent myself in the litigation process?
A: Yes it is possible. However, it can be difficult to fairly represent yourself especially in cases where you are in pain or emotionally unstable. Therefore, it is highly recommended that you seek the best personal injury attorney to defend your case.
Q: What instances can lead a case to transfer from mediation to litigation?
A: There are times when individuals settle for mediation only for the proceedings to end up in court. The different situations that may cause such a change include:
Mediation vs Litigation in Personal Injury Case - The choice between mediation and litigation when resolving personal injury claims is dependent on several factors. Identifying the best decision for an individual is important, especially when looking to achieve fair settlement. It is not about a one-size-fits-all but about consulting with a personal injury attorney to identify what best suits your needs, wants, and situation. A professional and informed choice paves way for the right outcome.
Lesley A. Allport. (2021). Mediation: Alternative? Or a First Choice for Resolving Disputes file:///C:/Users/keddie/Downloads/narayanaharave,+AC+2.2.2.1+Allport+(2).pdf Thies Williams. (2014). Why Choose Mediation Over Litigation in Any Legal Matter. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2381167