Arbitration is a way of resolving a personal injury claim without going to court. In arbitration, both sides agree to sit down with an arbitrator who will decide the case. The arbitrator is usually a lawyer and must be paid for their time, with the cost being shared by both parties. Many arbitration sessions are completed in a single day. They will choose one side or the other—unlike mediation, the point is not to find a compromise, but to use the evidence to see who is right. The main advantage of arbitration is that it’s a quick and cost-effective process.
In most cases arbitration is completely optional in a personal injury claim. In some cases, you may be contractually obligated to use arbitration. This is common with nursing home abuse cases, as many nursing home contracts contain an arbitration clause.
How is arbitration different from a trial?
In a personal injury case like a car accident claim, you have a right to a trial if your claim cannot be
resolved by simple negotiation. On the surface, going to arbitration seems similar to going to trial. But the two are very different:
- Trial is generally a longer, more exhaustive process with more opportunities to object or cross-examine the evidence.
- In Georgia, personal injury claims go to trial by a jury of twelve people. Arbitration claims are heard and decided by a single individual.
- The standard for evidence is higher in a trial than it is in arbitration. Arbitrators may choose to allow hearsay and other evidence that wouldn’t be allowed in the courtroom.
- If you go to trial, you first get a discovery period that allows you to gather evidence and request the other side’s documents. Normally you are prepared for what evidence they will present against you. In arbitration, you may see documents for the first time during the arbitration session itself, and have only a few minutes to review them.
Is arbitration good or bad for my case?
It depends. Just like a trial, you could win or lose at arbitration and there is no way to know in advance. But you can know how strong your case is and understand what advantages and disadvantages arbitration has.
The biggest factor to consider is whether you would do better before a jury. Juries can award you substantially more money if they feel sympathetic toward you, your personality or your injury. Juries are also more likely to make decisions based on emotion rather than simply on the facts. If you go to arbitration, you give that up. But juries can also be prejudiced against you, or you may have an injury like whiplash that juries don’t always take seriously. In this case you might be better off in arbitration.
Another factor to consider is how strong your case is overall. If your case is weak, you’re unlikely to win at trial but you’ll probably get something in arbitration, at a much lower cost. You may even be able to go into arbitration with a “high-low agreement.” This is where the two parties name a maximum payout and a minimum payout, and you get at least the minimum no matter what the arbitrator decides (but you cannot get more than the maximum). This helps protect both parties.
No matter how strong your case is, don’t be surprised if the insurance company requests arbitration. Many insurance companies prefer it because it saves them money. That doesn’t make it a bad option. Your lawyer can recommend whether or not arbitration is a good option for you.
What if a nursing home is requiring me to go to arbitration? Can I get out of it?
Last, sometimes arbitration is not optional, but required by a contract you signed. In recent years this has become extremely common with nursing home contracts. The contract will state that any complaint or injury claim will be settled by arbitration, not in court, and you agree to this when you sign the contract. This is widely viewed as unfair, but it’s become so common that you would be hard pressed to find any nursing home that doesn’t do it.
These contracts are bad for you for several reasons:
- Arbitrators often award smaller amounts in nursing home cases than a jury would award.
- The contract usually names a specific party to act as arbitrator, which is often an association that represents nursing homes. This raises an issue of bias against your claim.
- Any time you are forced into a dispute resolution by the other side, rather than having both sides agree to it, there is a power imbalance between the parties. You have less leverage under this kind of agreement.
In some cases you may be able to get around this requirement. When you file your personal injury claim with the courts, the nursing home will object and file a motion asking the judge to send you to arbitration. But your lawyer can make a case for why the judge shouldn’t do this. In most cases the judge will honor the contract and enforce the arbitration, but there are cases where they may not:
- If the elderly person who signed the contract was not sound of mind when they signed it
- If a family member signed the contract, but that person did not have legal authority to do so
- If the family is the one suing the nursing home, and the family was not party to the original contract
There are other circumstances where the contract can be challenged as well. A good nursing home abuse lawyer will help you fight the contract.
Have you been injured? John Foy & Associates offers a free consultation with some of the most experienced and respected personal injury lawyers in Georgia. Fill out the form to your right or call us at 404-400-4000 to get your FREE consultation today.