Avoiding the Courtroom – Settling Through Mediation or Arbitration
In a civil litigation case like wrongful death, the deceased’s family has difficult decisions to make. With more than one avenue leading to compensation, the family should always begin by looking for guidance in the form of an experienced lawyer and in a timely manner.
In representing the family of a deceased individual, a wrongful death lawyer will work with their clients to collect and examine the evidence for the claim. Even though the evidence may suggest that the plaintiff would succeed with their claim in court, many civil cases are settled or decided in alternative settings, for a variety of reasons.
When a lawyer and their client are deciding whether to pursue a lawsuit, they will also consider precedent cases. If similar cases in the past have not worked well for plaintiffs, the family might decide their own isn’t worth going to court over. In many cases, the family might simply decide that they don’t want to engage in a long, drawn-out, risky trial and would rather settle their claims fairly through mediated negotiations or an adjudication outside the civil trial system in Ontario. Two available alternatives are mediation and arbitration.
Mediation allows the two parties to discuss their situation in the presence of an objective, mutually agreed upon outsider. This is often the preferred method in less severe cases, or when both sides have agreed on at least some facets of the case. In a case where both sides are far apart, the plaintiff can always take part in mediation, but decide to go to arbitration, or to court, if the mediation fails. Mediation is often effective in helping the parties settle, in even the most serious and complex injury cases, by allowing the parties to fairly assess the relative strengths and weaknesses of their positions.
Arbitration can be thought of as a kind of hearing, where oral and other evidence is called by the parties. Instead of facilitating conversation as a mediator would, an arbitrator comes to a binding decision, much like a judge. This allows for an objective, expert opinion from a third party without the hassles of court. The biggest advantage is the speed with which matters are handled, much like in mediation. Unfortunately, private arbitration hearings must be with the consent of all parties and there is the additional cost of hiring an arbitrator to decide the dispute.
Deciding which path to follow is not to be taken lightly and should be done in consultation with an experienced lawyer, as they can provide an accurate assessment of the costs and chances of success in each case.