by Heather M Eichenbaum Esq
Claims for personal injury are inevitable in the amusement industry and usually culminate in lawsuits. Those lawsuits are public record and, therefore, available for all to discover. Alternative Dispute Resolution (“ADR”) is one way of resolving claims more quickly, confidentially – and for considerably lower cost.
A typical ADR pre-lawsuit will cost about a quarter of the cost of taking a claim through a lawsuit and trial. ADR may take the form of mediation, binding arbitration or non-binding arbitration.
A mediation is, simply stated, a meeting with a neutral mediator whose job it is to try to resolve the dispute by each side coming to a compromise. The parties to a claim can agree to mediate a claim at any time – before or after a lawsuit is filed. The parties can agree to conduct discovery and exchange expert reports before the mediation or not.
The mediator essentially acts as a go-between or negotiator. Generally, the mediator will request written submissions that summarise each party’s position before the mediation and then work with the parties, together and separately, to reach a resolution on the day of the actual mediation. That resolution can be confidential by agreement of the parties.
A binding arbitration is a private (out of court) mini-trial which is a final definitive resolution to a claim. A non-binding arbitration is the same except that either party can reject the arbitration outcome and file a lawsuit or appeal. An arbitration is more involved than a mediation but less formal, time-consuming and expensive than a trial.
As with mediation, parties to a claim can agree to either form of arbitration before or after a lawsuit is filed. Parameters for the arbitration and lead in to it (conducting discovery) can be negotiated and agreed upon by the parties and reduced to a written arbitration agreement. Usually only the parties, and maybe a fact witness or two, will testify at an arbitration, reducing the cost of experts, whose opinions can be submitted by reports.
Arbitrator(s), who are usually local attorneys or retired judges, will request written submissions that summarise each party’s position and then conduct the mini-trial and issue a written decision on the claim. The parties can agree that decision will be confidential.
As trials can be extremely costly, and usually not the only way a claim can be resolved, Alternative Dispute Resolution should be considered as an alternative by all amusement venues and claims handlers, both pre-suit and once a lawsuit is filed. Because the parties can agree to the terms for ADR in a written contract, there is often more flexibility than in a lawsuit. Not only will ADR save you considerable time and expense, it will also avoid unnecessary public commentary and media attention regarding the claim.
Heather Eichenbaum is a member with Spector Gadon & Rosen PC, practising in Pennsylvania and New Jersey. In addition to defending amusement venues, she also handles and provides training in crisis management. Legal counsel to and a board member of the National Association of Amusement Ride Safety Officials in the United States, she is also a member of IAAPA, NJAA, OABA and the IISF. Should you need legal assistance, reach Heather at: +1 215 241 8856 or heichenbaum@lawsgr.com
