Choosing Between Mediation and Litigation for Your Dispute

If you’ve been injured in an accident in Central Washington, there are a few possible paths your legal team could take in pursuit of compensation. Traditional lawsuits are the most well-known avenue, but mediation is an increasingly popular alternative for its speed and lower cost. In this post, we’ll explain how both work, their advantages and disadvantages, and when each may be useful.

What is Mediation?

Mediation is a type of alternative dispute resolution (ADR) led by a neutral third-party mediator. Washington courts can order you to participate in mediation, but both parties in a case can also agree to enter it voluntarily.

Here’s a general overview of the mediation process:

• Choosing a mediator – The parties will usually work together to choose a mediator. For personal injury cases, they will often be a retired judge or attorney with experience in injury law.
• Preliminary submissions – Before the first session, both sides send a confidential statement to the mediator detailing their position and the supporting evidence.
• The joint session – Both sides have a joint session with the mediator, during which they share an overview of their arguments.
• Private caucuses and negotiations – Each side goes to separate rooms after the joint session. The mediator briefly meets with each of them to discuss their case’s strengths and weaknesses. Then, they go back and forth between the rooms with offers and counteroffers.
• Settlement – If both sides come to a resolution, the mediator helps them formalize a binding settlement agreement.

What is Litigation?

Litigation is the traditional legal process. By pursuing it, you ask the court to decide your case’s outcome based strictly on the law and facts.

Before the formal litigation process starts, your lawyer will write a demand letter to the negligent party’s insurer and attempt to negotiate a settlement. If settlement negotiations aren’t successful, the process continues following these steps:

• Filing the complaint – Your lawyer prepares and files a formal legal complaint outlining your claims against the party who injured you.
• Serving the defendant – The defendant or their attorney receives court papers.
• Answer – The defendant’s attorney files a brief statement that responds to your complaint.
• Discovery – Both sides share their information and evidence, whether through document requests, answers to written questions, or depositions.
• Preliminary motions – Either side may ask the court to rule in a specific way before the trial.
• Continued negotiations – Both sides may continue to make settlement offers and counteroffers.
• Trial – The case proceeds to trial if both sides can’t reach a settlement. A judge or jury will hear evidence and arguments before issuing a verdict.

The initial verdict doesn’t necessarily mean the end of the process. It may take longer to reach a resolution if either side appeals the verdict to a higher court.

Key Differences Between Mediation and Litigation

These are some of the key differences between litigation and working with a mediator:

• Power – Mediators are not judges or juries. Their only goal is to move the parties toward a mutually agreeable settlement.
• Structure – Personal injury lawsuits follow strict rules surrounding the structure of proceedings and the admissibility of evidence. Mediation is much less formal, and your lawyer could negotiate a more flexible resolution such as a structured settlement.
• Cost – Mediation has lower fees, and both parties typically share the bill. Lawsuits are more intensive to prepare and pursue, and a higher cost comes with that time and effort.
• Privacy – Court proceedings generally enter the public record, while mediation is entirely confidential.

When Would Mediation Be a Viable Choice?

Mediation can be a practical approach to resolve your dispute under these circumstances:

• You’re concerned about cost – Mediation has neither a prolonged discovery period nor expert witnesses to pay. Your lawyer may explore it if you’re worried about legal expenses.
• If you need compensation quickly – Where lawsuits can stretch over years, mediation can take days to weeks. If you can reach a settlement, you’ll have faster access to the money you need for medical expenses and other recovery costs.
• If privacy matters – Mediation can be valuable for high-profile matters or disputes involving particularly sensitive information.
• If an insurer is involved – Insurance companies may be more willing to participate in mediation than risk a less predictable outcome at trial.
• If shared liability is an issue – Washington is a pure comparative negligence state. That means if a court finds you partially at fault for an accident, they can lower the damages you win. With mediation, you may benefit from a more nuanced approach to determining fault.

When Might Litigation Be Necessary?

While mediation is almost always the easier option, litigation may be appropriate in these cases:

• If the other side isn’t willing to negotiate – Some insurance companies will refuse to negotiate in good faith, and other defendants will deny responsibility despite strong evidence against them.
• If mediation fails – If mediation ends with both sides at an impasse, litigation will be the next step to resolve the dispute.
• If your injuries are catastrophic – If you are permanently disabled due to your injury or have substantial expenses, litigation may be better to establish your claim’s fairest value.
• If extensive expert testimony is needed – For complex cases, an expert witness can testify on your behalf in a way that mediation can’t replicate.
• If subpoena power is required – Some forms of evidence, such as phone records, are only available through a court-ordered subpoena.

Mandatory Arbitration Rules in Washington

Washington has a mandatory arbitration rule that applies to some personal injury lawsuits. If your claim’s value is at or below a county threshold, the court can assign it to arbitration. This threshold is generally $100,000, but some jurisdictions have set a lower amount.

Like mediation, arbitration proceedings are less expensive and more relaxed. Both parties may agree on a specific arbitrator or have the court assign one to them. The arbitrator reviews written and oral evidence before deciding on your case.

You can appeal an arbitrator’s decision by requesting a trial de novo (new jury trial) within 20 days. However, if you lose the case or don’t secure damages higher than the initial arbitration award, you’ll be responsible for the other side’s attorney fees.

Contact a Washington State Personal Injury Mediation and Litigation Attorney

The team at Tamaki Law can help evaluate whether mediation or arbitration is best for your case. Our six Central Washington personal injury attorneys bring over a century of combined legal experience and have secured record-breaking multi-million dollar settlements for clients throughout the state. Compassion, inclusivity, and accountability are central to what we do, and we never charge fees unless you win your case. Contact us at (800) 801-9564 for a free case review.