An arbitration hearing is similar to a small claims trial. The participants have to present evidence supporting their positions, and the hearing ends with the arbitrator’s decision in favor of one side or the other. Unlike mediation, an arbitrator has no duty to try to find a compromise. She’s more like a judge, who hears the evidence and makes a ruling.
If your dispute concerns a serious injury, you should have an attorney represent you at the arbitration. If your case is minor, you’ll likely do fine handling the arbitration on your own.
Overview of the Process
At the arbitration, you will be in the same room with the insurance company’s representative. In most cases, this will be an attorney. You’ll sit across from each other at a conference table, with the arbitrator at the head of the table. A court reporter may be present to record everything that’s said.
The arbitrator will introduce herself and go over the rules for the hearing. You and the insurance company’s attorney will be sworn to tell the truth. If either side has brought witnesses, the arbitrator may ask them to be sworn in as well.
Both sides have the option of making an opening statement. Then each side will present their case without interruption. At the conclusion of each side’s presentation, the other side may ask questions, but it’s not necessary. Arbitrators rely primarily on the evidence, not on the arguments of one side or the other.
You’ll present your evidence first because you are the petitioner and have the burden of making your case. Theoretically, the opposition doesn’t have to say a word. You started the original personal injury claim, and it’s up to you to prove its merit.
Strict rules of evidence don’t apply in arbitrations. Hearsay is admissible, but will likely be discounted by the arbitrator, so don’t rely on it to support your case. (Hearsay is when a witness repeats someone else’s statement; the person who made the statement must be present at the arbitration and ready to testify in person.)
The insurance company’s attorney will likely pick up where the adjuster left off and continue to oppose your demand for compensation. Although he’s there to win, he understands that you will probably be awarded at least some amount of compensation. His job is to do everything possible to minimize that amount.
Tips to Relieve Stress
To a layman, an arbitration hearing can be as stressful as a court hearing. Good preparation will help relieve some of your anxiety. Prepare your evidence and witnesses well before the hearing date, and practice your case presentation as much as possible. If you can, drive to the hearing location a day or two beforehand so you know the way.
When you arrive on the day of the hearing, ask the receptionist if you can go into the conference room early so you can set out your evidence. Unless it’s occupied, you should be allowed into the room. This will help you become familiar with the environment and give you time to review your case.
It’s normal to be anxious. Remember to breathe deeply and take your time when making your statements. The insurance company’s attorney may appear relaxed, but don’t let that bother you. In an arbitration, both of you are on equal footing.
Your Opening Statement
The arbitrator will ask you to make an opening statement. Although you won’t be under pressure to make your statement brief, as you would in a small claims trial, try to limit it to one or two minutes.
Your opening statement should not discuss the specific details of your injury or previous negotiations with the claims adjuster. You’ll have plenty of time to make your case during the presentation of evidence. It’s best to limit your opening statement to a brief overview of the facts.
Example of an Opening Statement
I was seriously injured on Thursday, December 4, 2014, when I was hit from behind by Ms. Penelope Smith. My injuries were extensive, as was my pain and suffering. The insurance company and I were unable to reach an agreement on the amount of compensation necessary to fairly settle my claim. Today I intend to present evidence to support my claim that fair compensation for my damages should be $10,000. Thank you.”
Remember, what you say in your opening statement must be proved. It’s better to present plenty of evidence to support your statement than it is to try to make a grandiose claim that you then have to defend. Let your evidence be your real opening statement. That’s what successful lawyers do.
Once you complete your opening statement, the arbitrator will ask the insurance company’s attorney if he wants to make his own opening statement. Don’t be surprised if he chooses not to, or chooses to reserve his opening statement until just before he presents his side of the case. That’s normal.
Presenting Your Evidence
After the opening statements, the arbitrator will ask you to present your case and evidence. If you’re well prepared, you should have no problem. This is when you’ll give specific details to support your case.
Begin by telling the arbitrator a little bit about yourself. Talk briefly about matters such as where you work, whether you’re married, have children, etc. Give just enough to let the arbitrator know you’re more than just the case file she has in front of her.
Quickly move on to the day of the accident. Now is the time for details. Explain where you were at the day and time of the accident. Be specific about exactly how you were injured. If the police or fire rescue responded, give details about what they did. Then present your medical treatment records.
As you present your case and mention evidence, hand the arbitrator the relevant documents. Bring multiple copies of all documentation, as the arbitrator will want to keep those you submit as evidence.
The insurance company’s attorney should know not to interrupt while you are speaking. If he does, the arbitrator will stop him and tell him to refrain from making any statements or asking any questions until you’ve completed your case. The same goes for you.
Next, talk about what happened after the accident, especially the pain and suffering you endured. Make it tangible by using personal examples. This might include your inability to walk or bend without excruciating pain, or not being able to get out of bed without using crutches. Talk about how your pain affected your relationship with your wife or children.
Make your suffering real to the arbitrator. Just saying you were hurt isn’t enough.
When you require testimony from one of your witnesses, ask the arbitrator to bring the witness in. Ask your witness questions about what he saw, heard or said. This can include what happened at the accident scene, what someone told him directly, or what he heard, such as squealing tires, shattering glass, or your cries of pain.
Witnesses’ opinions may differ on the amount of pain and suffering you endured or the strength of your medical narratives. If you become confused or tired, or just need some time to think during the hearing, ask for a five or ten minute break. The arbitrator should oblige.
Once you complete your presentation, the arbitrator may ask the insurance company’s attorney if he has any questions for you. Some arbitrators permit this and some don’t. If the arbitrator allows questions, she will make sure they are not aggressive or confrontational in nature. Any questions must be directly related to your evidence.
After the attorney’s questions, it’s time to begin his side of the case. If he reserved his opening statement, he may have a few words to say first. Take notes while he’s speaking. If he offers any documents into evidence, ask the arbitrator to show them to you. You can ask for a few minutes to study each document.
Once the attorney completes his side of the evidence, you’ll be able to ask some questions. You don’t have to, and not doing so probably won’t hurt your case. But if you hear something which is unclear or untrue, don’t be afraid to ask the attorney to clarify. If you have any questions about the documents he submitted, this is the time to ask about them.
Once both sides finish presenting their cases, the arbitrator may offer each side the opportunity to make some closing remarks. If you haven’t proved your case by now, a few brief closing remarks probably won’t help.
If the arbitrator thinks additional documentation will help her make a decision, she may ask you to submit those documents to her after the hearing. This could include anything you mentioned but didn’t bring, such as a doctor’s report or some photographs.
Make sure you comply with the arbitrator’s request as soon as possible. She has a reason for asking. Those additional documents might be just the evidence she needs to decide the case in your favor.
Once the arbitrator makes her final remarks, she will officially end the hearing. She’ll gather up the evidence and tell you her decision will be sent in the mail. Once the hearing is closed and you leave the office, you won’t be able to speak with the arbitrator again. Other than sending additional documents if requested, your case is over.
The Arbitrator’s Decision
Within a week or two you’ll receive the arbitrator’s decision. If you presented your case well, you should be satisfied with the results. Unfortunately, many arbitration clauses prohibit you from filing any kind of appeal if you’re unhappy with the decision. Such is the nature of binding arbitration.