Find out what happens at an arbitration hearing when you face off with the insurance company over your personal injury claim.
Arbitration is a type of Alternative Dispute Resolution (ADR). It is a way to settle disputes, like denied personal injury claims, without filing a lawsuit.
When an injury case goes to arbitration, the claimant and the insurance company present evidence and make arguments supporting their positions. The arbitrator then decides in favor of one side or the other.
An arbitrator is like a judge, who hears the evidence and makes a ruling. They have no duty to try to find a compromise.
There are pros and cons to arbitration, especially “binding” arbitration. Here we discuss using arbitration to settle personal injury claims and what you can expect at an arbitration hearing.
Preparing for the Arbitration Process
When you file a personal injury claim with someone else’s insurance company, called a “third-party” claim, it’s best for all parties involved to negotiate a fair settlement. But sometimes claim negotiations fail and you must consider other options. Arbitration is one of those options.
When you file a personal injury claim with your own insurance company, called a “first-party” claim, arbitration might be your only option. Many auto insurance policies contain an arbitration clause that requires disputes between the policyholder and insurance company to go through binding arbitration.
The arbitration process can be a good alternative to filing a lawsuit for personal injuries if you can’t reach a fair settlement with the insurance company. Just make sure you’ve considered the risks before demanding arbitration.
Consider talking to an experienced personal injury attorney to make sure arbitration is the best way to resolve your claim.
When you agree to arbitrate, you’ll be facing off against the insurance company and its lawyers.
Both sides must choose from a shortlist of potential arbitrators, until one is accepted by both sides. Many states have networks of arbitrators, or your list may come from a national organization like the American Arbitration Association.
Arbitration costs are typically shared by the disputing parties. Each party is responsible for their own attorney’s fees.
Many insurance companies will ask for a high-low arbitration agreement. Under a high-low agreement, you are assured of a minimal amount, regardless of the arbitrator’s award, and the insurance company is protected from an unusually large award in your favor.
Example: High-Low Agreement
Sharon was injured in a slip and fall accident at a convenience store. When negotiations stalled with the store’s insurance company, Sharon asked for binding arbitration. The company asked for a high-low agreement. Sharon agreed to a settlement minimum of $20,000 and a maximum of $50,000.
Possible outcomes of the arbitration include:
- The arbitrator awards Sharon $35,000. The arbitration award falls within the high-low agreement range, so the insurance company must pay $35,000.
- The arbitrator awards Sharon $75,000. Because of the high-low agreement, Sharon will only receive $50,000, which is the upper limit.
- The arbitrator decides Sharon should only get $5,000. Because of the high-low agreement, Sharon will receive $20,000, which is the lower limit.
Overview of Arbitration Hearings
When the hearing gets underway, you’ll be in the same room with the insurance company’s representative and the company’s 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 said. Witnesses will usually wait in the hall or another room.
The arbitrator will introduce themselves and go over the rules for the hearing. You and the insurance company’s attorney will be sworn to tell the truth. The arbitrator may ask the witnesses to be sworn in as well.
The disputing parties have the option of making an opening statement. Then each side will present their case without interruption. After each side’s presentation, the other side may ask questions, but it’s not required. 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. If you’re disputing a third-party claim, you bear the burden of proof to show the insured person or business is liable for your injuries, as well as the scope of your injuries and pain and suffering.
If you’re fighting your own insurance company, you will have to prove the scope of your damages, and why they should pay your compensation demand.
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.
The insurance company’s attorney will likely pick up where the adjuster left off and continue to oppose your demand for compensation. The company’s attorney knows you’ll probably walk away with some money, but their job is to do everything possible to minimize that amount.
Arbitration Rules of Evidence
Arbitration rules aren’t as strict as those in court proceedings. For example, you can bring your medical records to document your injuries and treatment from a car accident. You won’t need to hire expert witnesses to justify why you needed to be off work for your injuries.
Hearsay is admissible, but will likely be discounted by the arbitrator, so don’t rely on it to support your case. (Hearsay is repeating what someone else said when the person isn’t there to back it up.)
In other words, be prepared to present your witness in person or bring a signed statement from the witness if what they have to say is important to your case.
Arbitration Hearings Can Be Stressful
Arbitration can be less stressful than a court trial, to the extent that you won’t have to stand in front of a courtroom full of spectators. Nevertheless, winning depends on how well you present your case to the arbitrator, so some anxiety is to be expected.
The best way to relieve some of your anxiety is to prepare as though you’re going to court.
Good preparation includes:
- Gathering your evidence and making extra sets of copies for the arbitrator and the insurance company lawyer
- Arranging for your witnesses to appear at the hearing
- Organizing copies of photographs or videos that support your claim
- Creating a written outline of your presentation and the evidence to support each point
- Practicing your presentation out loud, over and over
- Traveling to the hearing location beforehand, so you know the way and where to park
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 nervous. 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 arbitration, both sides are on equal footing.
Preliminary Arbitration Meeting
Once an arbitrator is selected, sometimes the arbitrator will contact the parties or hold a preliminary meeting with both sides to set the “rules” for your hearing.
Before the arbitration hearing, the parties generally establish dates for:
- The arbitration hearing
- Exchanging evidence
- Disclosing witnesses
- Submitting an arbitration statement
An arbitration statement is a written explanation of the facts of your case and what you want to get from the arbitration.
Speaking at the Arbitration Hearing
After introductions have been made, everyone is sworn in, and the court reporter is ready, the arbitration hearing will get underway.
The arbitrator will ask you to make an opening statement. Sometimes, when the sides have already submitted an arbitration statement, the opening statement is “waived,” meaning both sides agree to skip that part of the hearing.
If you make an opening statement, keep it short and to the point.
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 Arbitration Hearing Opening Statement
“I was seriously injured in a car accident on January 18 of this year, when I was hit from behind by Ms. Penelope Smith. My neck and back 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.”
Once you complete your opening statement, the arbitrator will ask the insurance company’s attorney if they want to give an opening statement. Don’t be surprised if they decline or reserve their opening statement until just before they present their side of the case. That’s normal.
Making Your Case to the Arbitrator
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 effectively presenting your injury case.
Begin by telling the arbitrator a little bit about yourself. Talk briefly about where you work, whether you’re married, have children, and so on. You want the arbitrator to see you as a person, not just another case file.
Quickly move on to the day of the accident. Now is the time for details. Explain where you were on the day and time of the accident. Be specific about exactly how you were injured. If the police or paramedics 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 keep those you submit as evidence, and you’ll also need courtesy copies for the opposing side.
The insurance company’s attorney should know not to interrupt while you are speaking. If anyone interrupts, the arbitrator will tell them to refrain from making any statements or asking any questions until you’ve completed your case. The same goes for you.
Prove fault for third-party claims. Establish the at-fault party’s negligence and liability for your injuries by explaining to the arbitrator what happened and how the event was the direct cause of your injuries.
Next, talk about what happened after the accident, especially the pain and suffering you endured. Make it tangible by using personal examples and back it up with evidence. For example, if you agonized over not being able to pick up your crying toddler, back it up with the doctor’s note restricting you from lifting more than ten pounds.
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. Question your witness about what they saw, heard, or said. You might ask about what happened at the accident scene, what someone told them directly, or what they heard, such as squealing tires, shattering glass, or your cries of pain.
If you become confused or tired, or just need some time to think during the hearing, ask for a five or ten-minute break. It’s better to ask for a break at a natural pause in the hearing, not when the other side is in the middle of a presentation. The arbitrator should oblige.
Handling Opposition from the Insurance Company
Some arbitrators will allow the insurance company’s attorney to ask you questions after you’ve made your presentation. If the arbitrator allows questions, they should make sure they’re 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 the insurance company’s side of the case. Take notes while the opposing side is speaking. If they offer documents into evidence, you should get a copy. If not, ask the arbitrator to show them to you. You can ask for a few minutes to study each document.
Once the attorney completes their side of the evidence, you’ll be able to ask some questions. You don’t have to, and declining to ask questions probably won’t hurt your case. However, if you hear something unclear or untrue, don’t be afraid to ask the attorney to clarify.
If you have any questions about the documents they submitted, this is the time to ask about them.
Concluding the Arbitration Hearing
When 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. However, this is a great opportunity to briefly restate your position and emphasize evidence that counters the insurance company’s arguments.
End by saying how and what you’d like the arbitrator to decide and thanking the arbitrator for helping resolve your claim.
The arbitrator will make their final remarks and officially end the hearing. Once the hearing concludes 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.
If the arbitrator thinks additional documentation will help with their decision, you may be asked to submit those documents after the hearing. The arbitrator could ask for anything you mentioned but didn’t bring, such as a doctor’s report or photographs.
Make sure you comply with the arbitrator’s request as soon as possible. Those additional documents might be just the evidence needed for the arbitrator to decide in your favor.
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.
Binding arbitration is final, so there are no options to appeal an unfavorable decision, and you won’t have grounds for a lawsuit.
There’s too much at stake to pursue arbitration for serious injury damages before getting reliable legal advice. Most personal injury attorneys don’t charge for their initial consultation, so it costs nothing to talk to an attorney about your claim.
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