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Online Dispute Resolution and Personal Injury

Alternative dispute resolution (ADR), an umbrella concept that includes arbitration and mediation, has grown into a popular approach to solving legal disputes. It often arises in commercial disputes, where many contracts require the parties in a dispute to pursue mediation or arbitration before anyone can sue. It can also come up in cases involving personal injury. In recent years online ADR has become an increasingly viable and robust alternative to conducting relatively expensive, in-person processes. Should someone who has been injured agree to pursue the online ADR approach instead of filing a lawsuit? Cost and speed are the chief reasons for pursuing resolution of legal disputes through mediation and arbitration. Mediation in particular can offer a particularly speedy and inexpensive route to a settlement. In mediation the two sides of a dispute sit down to negotiate a resolution of their problems, with a mediator acting as a neutral facilitator. The mediator isn’t a judge, and the two sides in the dispute don’t need to go through the complex and sometimes expensive process of developing evidence that would be suitable for a court. To reach a final outcome, the parties in a mediation need to reach agreement about how they’ll resolve their dispute. In the case of personal injury, that might involve the responsible party agreeing to pay a certain amount of money to the injured person. Arbitration is essentially “litigation lite,” with an arbitrator standing in for a judge. Arbitration is streamlined and simplified when compared to litigation, but rules of evidence and procedure make the process considerably closer to litigation than mediation is. The two sides to the dispute can call witnesses, present evidence, and make their arguments in an adversarial setting. At the end of the process the arbitrator will reach a conclusion which, in some circumstances, may be binding upon both sides of the dispute. Online dispute resolution is a concept in its relative infancy with a spotty history. Websites offering various kinds of dispute resolution services have come and gone over the years, mostly with little success to show for it. In theory, an online process offers many of the same advantages of mediation or, to a lesser degree, arbitration. It can be relatively fast, informal, and confidential. It can also be conducted between parties who are located anywhere in the world, removing barriers that might make other forms of ADR difficult (cost of travel, disability concerns, and so forth). The potential downsides of online dispute resolution are considerable. For starters, any conclusion reached in an online forum may not be legally enforceable in a court. It also doesn’t necessarily provide a mechanism for resolving difficult questions, which can make it unsuitable for controversies where important facts are in dispute. This is a common problem with personal injury cases. Complex issues like medical diagnoses will be difficult or impossible to resolve in a satisfactory way without the tools available in more formal settings. Even in cases where an online solution may offer a fast, simple approach to resolving a dispute, it’s important to consult with an attorney to understand the benefits and risks of such an approach. An attorney can help the client protect his or her interests, avoid traps set by the defense, and evaluate whether an online process needs to be abandoned for another approach. For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. To learn how we can be of help in your case, call us today for a free attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

A Lawyer’s Role in Mediation Proceedings

A Lawyer’s Role in Mediation Proceedings
Mediation has become a popular preliminary step in legal disputes where the adverse parties may be able to resolve their differences through moderated dialogue. Many types of contracts and some statutory procedures require or encourage mediation as a first step in any dispute process. At its most successful, mediation can resolve problems quickly, at low cost, and in a way that leaves both sides in a dispute feeling satisfied with the outcome. Despite its friendly ideals, parties in mediation still need the assistance of lawyers to protect their interests.

What is mediation?

In mediation people or organizations that have a legal dispute meet with a mediator to discuss their problem in hopes of resolving it without resorting to more expensive and time-consuming legal solutions (typically, litigation). Mediators receive specialized training in providing neutral assistance to both parties, with the goal of helping each party identify their core issues, goals, and areas of potential compromise. Mediation usually is a confidential process, meaning that the parties can make statements without concern that they will be made public or later be used in litigation.

The mediation process

An attorney’s role in mediation begins long before the mediation meetings begin and can carry on until the process reaches a formal end, either in an agreement or, if the mediation didn’t successfully resolve the dispute, in further legal action. The process can be broken into three easily understood phases:
  • Before mediation begins. At the preparatory stage an attorney helps the client gather information, make necessary disclosures to the other side, and craft a strategy. Attorneys also coach clients on how to handle difficult questions, understand the role of the mediator, and get clear about what mediation can and can’t accomplish.
  • During mediation. The attorney’s assistance to the client during the mediation process differs significantly from his or her role in litigation. The largest difference is that the attorney is there to give advice to the client. Mediation is a discussion, not an argument, so the attorney does not speak directly with the mediator or the other side on the client’s behalf. The attorney’s role is primarily to help clients evaluate the merits of different proposals, weigh different strategies (such as whether to make or accept an offer), and frame arguments. Attorneys can also draft materials to assist the process and can help the client navigate procedural matters like scheduling.
  • As mediation concludes. In some situations a successful mediation process needs to be followed up with an agreement between the parties that reduces their compromise to a document that can be legally enforced. The mediator may continue to play a role in crafting this kind of agreement, but the clients’ attorneys likely will play a key role in making sure that the agreement properly reflects the clients’ agreement. Once again the attorney’s goal at this stage is not to impose the attorney’s opinion about what the agreement should be, but rather is to ensure that the client’s preferences are met.
If the mediation was not successful the attorney’s role changes. Ensuring that the mediation is concluded correctly, with respect for the parties’ confidentiality, is just the first step. The attorney also discusses next steps with the client and potentially prepares for pursuing further actions, either in arbitration (where arbitration is required) or litigation. At this stage the attorney takes the wheel, in the sense that the other party no longer communicates directly with the client but instead works through the attorney.

GGRM is a Las Vegas personal injury and workers’ compensation law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area protect their legal rights and recover compensation. We assist clients at all phases of their disputes and are happy to help clients pursue resolution of conflicts through mediation. For a confidential, no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.

How Mandatory Arbitration Can Limit Nevada Employee Rights

How Mandatory Arbitration Can Limit Nevada Employee Rights
Employers are increasingly including mandatory-arbitration clauses in the agreements employees sign after being hired. The clauses are designed to prevent employees from filing lawsuits against their employers for just about any kind of employment-related issue, from unpaid overtime to unlawful discrimination and wrongful termination. Instead of going to court, employees are required to submit disputes to a private arbitrator. Because our legal system favors freedom of contract, an employee who is subject to a mandatory-arbitration clause may have no option but to comply. For employees the arbitration process can offer some benefits when compared to litigation, but it has a range of potential problems that make it a mixed blessing.

Arbitration has some advantages over ordinary litigation . . .

Arbitration can be thought of as a “light” form of litigation. Like litigation, lawyers usually represent both sides in the dispute, there are rules governing what can be used as evidence, and there are rules of procedure that in theory ensure that both sides receive a fair hearing. For employees, arbitration has two main benefits over litigation: it tends to be faster and cheaper. The backlog in our court system means a new case can take years to resolve, while an arbitration firm tends to not have the same bandwidth problem. And because the rules are simpler and the process less formal, attorneys’ fees and other costs tend to be lower.

. . . but many disadvantages.

For an employee the downsides of arbitration can be significant. Here are just a few of the issues:
  • No option to appeal. A typical arbitration clause will provide that the results of the arbitration are binding and can’t be appealed to the courts. An employee who isn’t satisfied with the outcome of binding arbitration may have no right to appeal the decision.
  • One reason employers favor private arbitration is the secrecy of the process. The results of private arbitration typically are confidential, and quite often the employee is bound by an obligation to keep the results secret as well. In cases involving unlawful discrimination or sexual harassment, one can see how a confidential process benefits the employer at the expense not only of the individual employee bringing the complaint, but potentially many other employees as well.
  • Unequal power. Litigation tends to balance the inherently unequal employer-employee relationship, by giving both sides equal rights before the law. Private arbitration doesn’t always meet the same standard. Some arbitrators may have an incentive to favor employers, because an employer will continue to use an arbitrator that it thinks will take a more favorable view of the employer’s side. This problem has been well documented.
Together these problems can frustrate an employee’s efforts to enforce important legal rights. Because arbitration can be binding and unappealable, it is especially important for employees to seek good legal advice.

GGRM is a Las Vegas law firm

The attorneys at the law firm of Greenman Goldberg Raby Martinez are proud to serve working people in the Las Vegas area. If you are in a dispute with your employer and have questions about how a mandatory-arbitration clause affects your rights, we would be happy to talk to you about your options. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.