What is Injury Mediation and Arbitration in Utah?
What is Utah mediation or arbitration when it comes to car accidents, dog bites or slip & fall injury cases?
Mediation is where a professional third-party attorney, usually very experienced in personal injury, facilitates the parties to an out-of-court settlement.
Arbitration is where the parties present their case before an arbiter, who then decides a personal injury case for the parties involved. The arbiter is usually a very experienced personal injury attorney themselves.
The difference between them is that a mediator helps the parties settle and an arbiter tells the parties what the settlement will be. Mediation agreements are binding and final, absent fraud. Arbitration agreements are generally not final. Utah car accident cases are often resolved in mediation or arbitration. In fact, many judges will not allow the parties to get a jury trial until they have attempted to mediate the case.
Here is some Utah law on the use of arbitration:
“321” Car Accident Arbitration. 321 arbitration is found in Utah Code Ann. 31A-22-321 (2020). This style of Utah car accident arbitration is commonly used. The rules of evidence are almost non-existent, outside of the certain privileges, like the attorney-client, marital privilege, the 5th Amendment, etc. 321 Utah car accident arbitration is cheap and fast. You have expedited discovery deadlines, small fact discovery periods and you don’t have to bring your expert witness into the arbitration, like you would with a traditional jury trial.
Appealing 321 Arbitrations. 321 car accident arbitration is completely appealable. Either party, if they are not happy with the arbiter’s award, can appeal the award within 20 days of service of the arbitration award. If the award is appealed, the case will then be set for a scheduling conference where, by statute, another 90 days of discovery is allowed and the parties pay for expert witnesses. This involves more money and time. It’s called a “De Novo” appeal, or, “let’s do it all over again”.
The party that appeals the arbitration award must do better on appeal than they did at he arbitration or enhanced costs are assessed. So there can be a penalty against the appealing party if they don’t improve their position on appeal.
Stipulated Arbitrations. The parties can stipulate to just about any type of arbitration they want for their Utah car accident. Maybe they missed the 14-day deadline to request a 321 car accident arbitration, so they just stipulate to having the terms of 321 arbitration. Or the parties can stipulate to binding arbitration without the right to appeal, as always accompanies statutory-based arbitration.
The parties can stipulate to the rules of evidence being strictly or loosely applied. Either way, with stipulated, or agreed-to arbitration, best practice is to have what the arbitration rules are in writing before conducting the arbitration. This will allow both parties to understand the rules going into arbitration.
78B-11-101 (2020). Utah Uniform Arbitration Act. This statutory arbitration scheme is basically the default arbitrations provisions for all arbitrations where the parties don’t agree otherwise. For example, if the parties don’t agree how the evidence rules will be applied, this general default Act steps in and fills the gap and dictates how the evidence rules will be applied. Or where the parties don’t agree on how discovery will be conducted, this Act dictates what the default discovery rules are. This general default Act can apply to any civil action outside of more specific arbitration statutes apply. Some examples of these types of cases are: dog bites, interfamily, and 321 arbitration acts.
78B-10a-101. Tort Arbitration. This statutory arbitration act is the catch tort arbitration act specific to torts. Torts aren’t candy. Torts are private wrongs between the offender and the injured party. It doesn’t apply to contracts, water rights breaches, etc. It provides for the damages party to command statutory arbitration in their tort (injury) action. As required by the United States Constitution and the Utah Constitution, there must be an appeal “De Novo” provision included in the Act to preserve the defendant’s jury trial right.
UIM Arbitration. Utah Code Ann. 31A-22-305.3 Underinsured motorist coverage is the insurance coverage on your own car that kicks in and is trigged when the person who hurt you didn’t have enough insurance to make you whole. An example is when the person who rear-ended you only had $25,000 in liability insurance and you suffered head, arm, and rib fractures. Obviously the other person’s $25,000 will barely cover the medicals bills and therefore you own Underinsured motorist coverage(“UIM”) can be used to provide additional compensation for your injuries.
You have a right to arbitrate your UIM coverages. As usual, there is a “De Novo” appeal provision in UIM arbitrations. Meaning, the party appealing must do better than 20 percent of the original UIM award, or there can be increased cost sanctions awarded above what is normally awarded under Utah R. Civ. P. 54 (2020). There is also an “Undisputed Tender” provision where your own UIM carrier must tender what the UIM carrier considers to be the undisputed amount of money to compensation to you for your underinsured injuries.
UM Arbitration. The Uninsured motorist coverage arbitration is almost a mirror image of the UIM underinsured motorist benefits discussed above. Please continue reading the blog articles for the differences between UIM and UM coverages.
Dog Bite Arbitration. You can use arbitration in personal injury cases that result from dog attacks. This statutory action allows for mandatory appealable arbitration in dog bites cases. Again, like all statutory-based arbitrations where the injured plaintiff can take away the jury right of the defendant, there is a “De Novo” appeal right included.
Inter-family arbitration. Often, Utah car accidents involve multiple family members. This can be a one-car rollover where the driver flips the car, unfortunately hurting his own family in the process. Bringing claims by the children against their own father sometimes is precarious in a courtroom. Therefore, the parties can use arbitration to resolve interfamily car accident claims.