Mandatory arbitration is available for cases with a total value of less than $50,000.00 or when the plaintiff waives any claim above $50,000.00. Rather than waiting in line for a jury trial date and possibly being put on stand-by or suffering a court delay, the parties receive a set date and time. The parties submit a Prehearing Statement of Proof to the arbitrator no later than two weeks in advance of the hearing. These documents often include what is submitted in the settlement demand binder. The arbitrator reviews the papers prior to the hearing. The hearing takes place in the arbitrator’s conference room. The atmosphere is more relaxed than a jury trial setting and the rules of evidence are also more liberal. The time it takes to arbitrate a case is much shorter than the time it takes to try a case. Usually the plaintiff and perhaps one or two lay witnesses testify, but the experts, including the plaintiff’s treatment providers or other experts, often do not testify live at the hearing. Their opinions are usually well documented in the chart notes or reports within the medical files already submitted to the arbitrator. A case that might take two to three days to try in front of a jury is often fully arbitrated in three to four hours.
Andrew Becker has been serving as an arbitrator since 1989 and has literally arbitrated several hundred cases. He has arbitrated more than that amount as a lawyer for one of the parties, usually the plaintiff. Our experience is that the arbitrators, who serve at a reduced hourly rate, take the mandatory arbitration program seriously, review the materials closely, and pay careful attention at the hearing.
The selection of the arbitrator is done by the County’s Superior Court office. Each side to the litigation gets a list of arbitrators from the Superior Court. In a two-party case, there would be five names of potential arbitrators on the list. Each side gets to circle two and strike two and send the list back in. The court’s arbitration department then notifies the arbitrator of his or her appointment and the arbitrator works with the parties to set a date for the hearing. In advance of the hearing, the parties usually undertake some discovery including records stipulations, depositions, and sometimes a limited amount of written interrogatories.
After the hearing the arbitrator provides a written decision or award within 14 days of the hearing. The award is filed with the court. At that point, either party may appeal the award within 20 days. An appeal from Mandatory Arbitration is called a “de novo” appeal. That means that the jury is not told about the arbitration award and the case is tried as if no arbitration had occurred. If no appeal is filed, the award may then be reduced to a judgment. There is a major disincentive for a party to appeal. If a party appeals and does not improve their position at trial from the arbitration award, the prevailing party receives not only the jury verdict, but also actual fees and costs from the time of the appeal “de novo” all the way through trial.
After an arbitration award, many carriers will pay the award, others may appeal “de novo”, and others may wish to negotiate further on the case. Our response will depend on the facts of your specific case. Many cases are resolved through the mandatory arbitration process. It is usually much quicker and much less expensive than the jury route.
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