Alternative dispute resolution (ADR) is the name given to methods to resolve disputes without the necessity of going to trial. It is a process that can be entered into by the parties directly or ordered by the court. There are a number of different methods that can be utilized either separately or in conjunction with each other.
Mediation: Mediation is often the method chosen by the parties. They select a person to be the mediator whose role is to facilitate the settlement discussions. A variety of approaches can be utilized depending on the interest of the parties and the style of the arbitrator. For personal injury cases the approach most often adopted by the mediator is to separate the litigants in different conference rooms and the mediator shuttles between them exchanging offers and demands, exploring issues that affect the outcome and discussing the strengths and weaknesses of the positions of the parties. As the parties and their lawyers evaluate the issues, the parties often find themselves able to make meaningful adjustments to their negotiating positions leading to resolution of the case.
The lawyers at Tewksbury and Kerfeld are very skilled in the mediation process. Most of the cases we handle go through mediation and are frequently resolved in that forum. In addition both Mike Tewksbury and Keith Kerfeld are frequently called upon to serve as a mediator for other attorney’s cases. Together they have served in this capacity over 2,000 times handling personal injury, construction disputes and professional liability matters.
Arbitration: Arbitration is a method used to resolve a dispute in a binding manner based upon testimony of the witnesses and presentation of documentary evidence. It is similar to a trial, but is a more efficient method of case resolution. The arbitrator or a panel of arbitrators selected by the parties, are well versed in the field of law that is the subject of the dispute. A jury on the other hand rarely has any background on the issues or medical injuries and much of the time at trial is spent educating the jurors on medicine, presentation of evidence for and against the case, as well as persuasion. Since the arbitrator is familiar with the issues the procedure can be much more streamlined. On occasion the parties will agree to submit the matter to an arbitrator for determination rather than go to a jury trial. The process is often cheaper and much more time efficient than trial. The arbitration can be binding on the parties or used as an evaluative process to assist in settlement.
Special Master: On cases where there is a desire to pay on behalf of the defendant and there are limited resources available to compensate a number of claimants, the parties or the court may utilize the services of a special master. The special master is chosen based on experience with the issues being resolved. The master will devise a procedure for the claimants to follow to submit the information on the nature and extent of the losses. The master will often meet with the claimants to learn more about the losses and then determine the value of each claim. The process is similar to an arbitration, but without the contested nature of the hearing. Once the master determines the value of such claims the parties agree to pay the amount awarded or if the resources are limited agree to accept pro-rata distributions. Mr. Tewksbury has served as a special master numerous times. He was appointed by the Supreme Court to be on the panel for the distribution of proceeds from the I-35 Bridge Collapse litigation, the Cottonwood bus accident, and Yaz/Yasimine birth control litigation.
Pre-suit evaluation: Occasionally the parties will utilize an experience attorney or retired judge to listen to presentation of a case by the attorneys and review key documents. After a review the chosen evaluator will render an opinion as to what a jury will do on the liability and damage aspects of the case. This determination then can be used by the parties in their settlement negotiations. This process can be helpful if the parties are far apart in their evaluations and need the benefit of a third party review.