MEDIATION v. ARBITRATION
Many health care provider contracts now contain language that states if a dispute arises between the health care provider, and the patient, all parties agree to arbitration.
Well, that doesn’t sound so bad, does it? In my opinion, it is bad. Here is a brief summary of the differences between arbitration / mediation and trial.
Arbitration – is a system of dispute resolution, without a judge or jury. One person, often a lawyer, will hear evidence, and decide the fate of your case. Often it will not be held locally, and you will have no choice as to who serves as the arbitrator. It can be as expensive as trial, you are not entitled to an appeal; cannot have a jury of your peers; and will not have your day in Court. Rather, it will be in a conference room somewhere – and you will not be entitled to subpoena records from third parties, as you could in Court. The awards can be lower than what a typical jury would give, but I hear attorneys on the other side lament often that the awards can also be high. It is binding – if such an agreement exists, you can’t take it back and decide you now want to exercise your rights to a jury trial. Also, you have to pay the Arbitrator (where you don’t pay for the judge or jury’s time).
Mediation – is a unique form of dispute resolution where parties agree to meet and attempt to negotiate settlement. No one decides the cases for you – it is formal or informal process of settlement talks. Most often, a retired judge or lawyer will serve as the mediator, an intermediary – going back between the parties making recommendations, and communicating offers and demands. Mediation is non-binding which means you are free to leave at any time, do not have to resolve the case, and will maintain your right to a jury trial. It is inexpensive as you will not be putting on evidence or witnesses. The only costs are the lawyers and mediators. We recommend it to many clients, as it provides a formal way to resolve the case, provide resolution, but allow for some involvement in the process.
Jury Trial – think law and order, smaller court room, no orange jump suits. Then think $$$ because hiring experts and getting witnesses to attend is expensive. You have your right to appeal. Sadly, jury can’t always make a decision and sometimes you have to do it again.
We always want to give our clients access to a jury trial – although about 50% of our cases will go to mediation. Of those, about 75% will settle during mediation. About 90% of our cases settle before trial…. And arbitration, well, we try to avoid that as much as possible!