I keep hearing about depositions, arbitrations, and mediations? What exactly are those and how are they relevant to my personal injury claim?
Once you file your case in Court, you are now in what is called “litigation.” It begins by filing a Complaint. Once a case placed under the authority of the Court, certain procedural rules (created by the Arizona Supreme Court) apply called the Arizona Rules of Civil Procedure. In addition, the Arizona legislature enacted laws (statutes) that also impact litigation.
The Arizona Rules of Civil Procedure provides mechanisms and guidelines for parties in litigation on when and how to address the Court as well as interacting with other parties (parties meaning plaintiffs [those filing the lawsuit) and defendants [those defending the claims against them in the lawsuit]). Some of these rules specifically address gathering evidence that both sides may and sometimes must utilize. This gathering of evidence is called “discovery.”
Depositions
One of the discovery “tools” is a deposition. A deposition is an in-person question and answers session under oath. If you are a plaintiff it is almost inevitable that you will be deposed at some point during litigation by the attorney representing the defendant. Whoever is being deposed is referred to as the “deponent.” Those present or those that can be present at the deposition are (1) deponent; (2) any party [any plaintiff(s) or defendant(s)]; (3) the parties’ attorneys; and (4) a court reporter and/or videographer (if the person requesting the deposition chooses to have the deposition videotaped). A deposition can only presumptively last four hours in state court (7 hours in federal court). A lawyer asks questions of the deponent and the deponent answers the questions after having sworn an oath, to tell the truth. The lawyer for the deponent, while present at the deposition, may make objections for the record but usually cannot prevent the deponent from answering the questions asked. The exception to this general rule is questions asked about conversations the deponent had with his or her lawyer (protected by attorney-client privilege). No judge or jury is present at a deposition and it is almost always held at the office of the attorney requesting the deposition. The court reporter is certified by the Court, and swears in the deponent and then takes down every word spoken by anyone that speaks at the deposition. While nobody enjoys or typically wants to be deposed, they must succumb to a deposition at the request of any party who is permitted to depose a party by right under Rule 30 of the Arizona Rules of Civil Procedure.
Arbitrations and mediations are two different unrelated processes for resolving a dispute outside of an actual judge or jury trial. These processes are often generically lumped together and called “alternative dispute resolution.” They are an alternative to a trial. While they are both a process to resolve disputes without trial, they are distinctly different in the manner in which they do so. The fundamental difference between the two is WHO has the authority to resolve the dispute. In an arbitration, the “arbitrator” has the authority to resolve the dispute and in mediation, only the parties by agreement between them, have the power to resolve the dispute.
Mediation
Mediation is overseen by a “mediator.” A mediator can be randomly selected by the Court or chosen by mutual agreement of the parties (i.e. private mediation). A typical mediation will be held at the office of the mediator. Each side will provide the mediator with a mediation memorandum providing the mediator with an overview of the facts of the case as well as the positions of the parties. Often the mediator will separate the parties into different rooms. The mediator will then visit each of the parties and discuss the strengths and weaknesses of that party’s claims or defenses. A monetary amount is offered and counteroffered between the parties until a resolution (settlement) is reached between the parties. While the mediator’s job is to try to get the parties to reach an agreement, the mediator does not choose a side or have any authority to resolve the parties’ dispute. Only the parties by mutual agreement can resolve the dispute. Any discussions about the positions of the case or amounts being offered by either side are confidential and cannot be used by either side in litigation.
Arbitration
An arbitration is overseen by an “arbitrator.” In arbitration, both sides present their cases and positions and an arbitrator decides the case (like a jury). Arbitration can either occur by agreement (either before a dispute occurs [i.e. an arbitration clause in a contract]) or after a dispute arises (parties agree to resolve by arbitration) or by court rule. In Arizona, cases valued at $50,000 or less must go to arbitration. Unless the parties agree to it, arbitrations are not binding.
Court-mandated arbitration (cases valued at $50,000 or less) work like this:
A plaintiff, when filing a case, designates the case as one that is $50,000 or less, by certifying it as one subject to compulsory arbitration or not subject to compulsory arbitration. The defendant, after being served with the Complaint, then must file its own certificate regarding arbitration and most often agrees with the plaintiff’s position as the defendant is rarely in a position at the time of filing their own certificate to determine the value of the plaintiff’s claim. Once the court receives the parties’ certificates, and if they indicate the case IS subject to arbitration, transfers the case to its ADR department. The ADR department then randomly assigns an arbitrator to the case. An arbitrator will be any lawyer that is a member of the State Bar of Arizona and has been a member for five years or more. Either side then has the opportunity to strike the arbitrator one time. Thus, if the plaintiff does not like the arbitrator, the plaintiff can file a notice to strike and ADR will assign a new arbitrator. The plaintiff can no longer strike the new arbitrator though the Defendant if they have not used their strike, may do so.
The arbitrator that is not stricken will then contact the parties to set a date for the arbitration. It will usually be held at the office of the arbitrator and will usually take 2 hours or less (depending on the complexity of the case and number of witnesses intending to testify etc.). Prior to the arbitration, the parties must submit a joint arbitration statement setting forth a brief explanation of the case and the witnesses and exhibits each side intends to present at the arbitration. While a joint statement is set forth by the rules, often times the parties and the arbitrators agree to allow the parties to submit separate arbitration statements.
At the arbitration, the arbitrator swears in witnesses and the lawyers question the witnesses and move to offer evidence for the arbitrator to consider. While it is the same process used before a judge and jury, there is typically no court reporter present and there are more lax requirements for which evidence gets to be viewed by the arbitrator. The lawyers then present closing arguments.
The rules require the arbitrator to file a decision with the court within ten days of the hearing. Either side may appeal the decision within 20 days of an award being entered. An appeal takes the case back to the original trial judge in which case the parties would try their case before a jury. An appeal from an arbitration essentially negates the arbitrator’s decision and the parties are placed back into the position as if no arbitration actually occurred. However, the arbitrator’s decision may come into play should the parties actually go to trial and a jury render a decision. The party that appeals to the decision MUST receive a verdict that exceeds the award by 23%. Thus, a defendant appealing the award must get a verdict that is 23% less than the arbitrator’s award. A plaintiff appealing the award must get a verdict 23% greater than the arbitrator’s award. If the appealing party does not beat the award by 23%, then the appealing party will be required to pay the non-appealing party’s attorney fees (which can often exceed the value of the case).