But what exactly are the pros and cons of each approach?
Everyone has a right to a trial by jury, whether it’s a criminal case or a civil one. And while we’d like to imagine that our justice system is as objective as possible, there’s always at least some bias so long as there’s a human making a decision.
When it comes to personal injury cases, juries tend to favor underdogs and powerful narratives. They will also consider the evidence, of course, but if the case is still unclear even with all the evidence (and if the case got as far as a trial it’s probably unclear), then a good narrative may be a crucial tipping point.
On the other hand, the members of an arbitration board are chosen from a pool of professionals, typically professionals whose expertise has to do with the matter at hand. This allows them to understand the situation more deeply than a jury of laypersons could, but their professional connections also tend to give them a bias towards any corporations involved.
For the majority of personal injury cases, the biggest money and time sink is the discovery process, which is the period when both legal teams track down every bit of evidence and every witness which could help their case, evidence they have to share with the other team so that they can form a defense against it and find new evidence to support that defense. It’s this tug-of-war approach that causes discovery periods to run long, but since both teams know what their opponents are doing most cases are settled out of court when the evidence becomes overwhelming.
Since the main appeal of arbitration boards comes from their speedy resolutions, this usually means the discovery period gets cut short. As a result, arbitration tends to favor the side which can assemble its case the fastest, rather than the side whose case is the most accurate to what happened.
Going with the courts gives you the opportunity to settle early, and if you do then (for the most part) that’s the end of the matter. On the other hand, a trial result can always be appealed, and it very often is. This adds a considerable amount of time and money to an already expensive process, and the appeal could potentially go through several rounds followed by a retrial and more appeals.
On the other hand, while you can appeal an arbitration result, the process is harder and it generally happens less often. Once again, this means the process is streamlined and ends faster than a trial, but at the same time it means arbitration favors the fastest party rather than the most correct party.
While going with an arbitration means spending less time in legal limbo, there are some considerable costs that go along with choosing an arbitration board when you could go to trial instead. Consider your case carefully before you agree to use one method or the other.