Since the early days of the 20th century, the arbitration of civil disputes has been embedded in our justice system, as in the Federal Arbitration Act (FAA), 9 U.S.C.S. Section 2 (1925). While intended to allow parties to a contract to resolve disputes via mandatory arbitration, over the past 30 to 40 years, the use of various forms of dispute resolution—besides mandatory arbitration—have found their way into other types of legal disputes by either contractual agreement or the adoption of requirements to participate in mediation as a prelude to a jury trial. In fact, at this time, there seems to be unanimity across the United States that every court system either requires or recommends that the parties participate in some form of dispute resolution before allowing in-court resolution by jury trial. The successful resolution of personal injury lawsuits via ADR is wildly variable and dependent upon the venue, the type of claim, the potential value of the claim and the attitude of the parties and the mediator. This article provides some helpful tips to assist counsel in resolving these cases without trial.

According to published studies, nationally, only 2 percent of all tort cases go to trial. Of those that go to trial—and most of these are civil cases on appeal from arbitration—about 46 percent result in verdicts for plaintiffs, which means that 54 percent of the trials result in defense verdicts. However, these statistics do not reflect the win-loss ratio for “major cases” that go to trial—in which the importance of obtaining a financial recovery has more dire consequences for both sides than the typical “soft-tissue or moderate injury case.” In major cases, the percentage of cases won by the injured party is less than the 46 percent win ratio noted above. These statistics should affect the decision-making process essential to an amicable settlement before trial.

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