Trial Attorney - Pre-Trial Settlement

JUDICIAL ARBITRATION
You may find yourself in a process called judicial arbitration. Various jurisdictions have there own local rules concerning judicial arbitration. Unlike some forms of arbitration, judicial arbitration is not binding. A party dissatisfied with the award may elect what is called a trial de novo. This means they can ask that the arbitration award be disregarded and that the matter go to regular trial by jury or trial by judge. However, the person rejecting the arbitration award is subject to certain disincentives. For example if such a party is unable to obtain a more favorable judgment he is liable for substantial costs and fees.

Once the award is rendered, if a trial de novo is not requested within a prescribed period, the order becomes final.

The term "judicial arbitration" does not adequately describe the system; since the process is not judicial, in that it is not conducted by a judge and the right to a trial de novo, (to disregard the arbitration award) removes the finality of a true arbitration. Some courts have suggested that the term "extra judicial mediation" would be more accurate.

The arbitration of the pedestrian accident case normally takes place in the conference room of an attorney, experienced in the particular kind of case, who acts as the arbitrator in the matter. The proceedings are rather informal. Both sides submit arbitration briefs. Testimony of parties and sometimes witnesses are taken. Depositions, police reports, medical records and other documentation are introduced into evidence. Generally arbitrations only take a few hours and are normally concluded in a day or less.

MEDIATION
Another process by with the parties may resolve their differences without trial is mediation. Mediation is a process more informal than arbitration. The parties stipulate to a particular mediator who is normally an attorney experienced in the particular type of controversy. Mediations take several hours up to a full day. The parties meet with their attorneys, usually at the mediator's office. The procedure at the mediation is entirely up to the mediator and varies considerably from case to case. In a typical case the following procedure might take place.

First the attorneys and their clients meet in a conference room with a mediator. The mediator explains to all parties the purpose of the mediation. He explains that whatever is stated at the mediation cannot be used against either party at time of trial and stresses absolute candor and encourages both parties to act in good faith towards resolution of the case.

Next, the mediator may excuse the parties from the room and speak only to the Plaintiff and Defendant's attorneys. The reason the parties are excluded at this time is to encourage complete candor between the attorneys. Both attorneys feel free to discuss, for instance, the strengths and weaknesses of their case.