Wrongful Death Claims

Mediation and Arbitration of Wrongful Death Claims

Wrongful death claims are one of the more frequent types of civil actions that occur as a result of medical malpractice, vehicle crashes, workplace accidents and product liability claims (involving manufacturing defects, design defects or failure to warn of the dangerous aspects of products). 

Resolving wrongful death claims through litigation can be both emotionally and financially draining for surviving family members.  Going through the discovery process and a lengthy trial puts significant stress on grieving survivors who have lost their loved one(s).  For many family members, affected by a devastating loss, dealing with the complex legal process often makes them feel powerless and re-victimized. 

Bearing that in mind, settling out of court is oftentimes a more compassionate and humane way to resolve wrongful death disputes and reduces the survivor(s)’s grief and mental pain and suffering. 

Mediation of Wrongful Death Claims

Mediation is an alternative dispute resolution (“ADR”) procedure, with significant advantages over traditional court litigation.  As an informal and confidential approach to resolving claim(s), mediation offers the parties to a wrongful death claim numerous benefits that a trial cannot.  Mediation enables the grieving survivor(s) an opportunity to express the pain and suffering caused by the defendant(s)’s claimed actions or omissions.  Oftentimes, through mediation, the defendant(s) more readily understand the survivor(s)’s grievances and get(s) the chance to offer an explanation for the behavior that led to the death of the survivor(s)’s loved one.  In short, mediation can be an effective and mutually beneficial method of settling wrongful death claims. 

In mediation, an impartial third person – the mediator (usually a retired judge or an experienced attorney), selected by the parties, seeks to facilitate a resolution of the wrongful death claims between the survivor(s) and the allegedly responsible party/ies. 

Mediation usually consists of (i) a joint meeting with all parties and their attorneys in attendance where the parties’ attorneys summarize their respective claims and/or defenses, and summarize the damages incurred by the survivor(s), as a result of the premature death of their loved one, followed by (ii) a series of discussions (caucuses) that the mediator conducts separately with each party and their attorney.  There may also be subsequent joint sessions held with the parties, their attorneys, and, sometimes, the representatives of the alleged at-fault party/ies’ insurance company/ies. 

Unlike stressful witness direct and cross-examinations in jury trials, the mediation procedure occurs in an informal, much less stressful atmosphere.  The mediator will help the parties better understand each other’s respective positions and settlement demands/offers . . . and oftentimes facilitates a settlement.  This is especially important in wrongful death claims, where the surviving family member(s) oftentimes enter(s) into negotiations with intense feelings of anger, bitterness and resentment.  Due to such emotions, survivors may wish to delay making decisions regarding a settlement for a reasonable period of time after the death of a loved one.  In short, a mediation conducted too early (following the wrongful death of a loved one) may not be as productive as a later mediation might be. 

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To take advantage of the benefits mediation has over traditional litigation, the parties should be made aware of the various stages of their wrongful death claim through trial.  With the assistance of their attorney(s), the survivor(s) should consider the probability of obtaining a favorable judgment at trial and the ability to enforce it.  Other factors to consider might include the time it will take to get the case to trial, the possibility of the losing party taking an appeal and the strengths and weaknesses of the survivor(s)’s case and that of the opposing party/ies.  The wrongful death defendant(s) will likely attempt to assess the survivor(s)’s desire to negotiate and attempt to estimate the amount necessary to settle the wrongful death claim(s). 

It has been said that no amount of money can compensate for the death of a loved one.  The feelings of emptiness, fear and distress tend to remain even after any wrongful death claim resolution. However, court trials often leave the survivor(s) with increased bitterness.  Through mediation, any settlement reached can help the grieving survivor(s) through their emotional and financial healing.  Through negotiation, the survivor(s) can also get a sense of acknowledgment and, hopefully, a measure of justice. 

Arbitration of Wrongful Death Claims

Arbitration is an alternative dispute resolution (“ADR”) procedure which is more similar (than mediation) to traditional litigation and trial. 

There are two types of arbitration:  (i) non-binding arbitration, and (ii) binding arbitration.  In non-binding arbitration, the parties can reject the arbitrator(s)’s decision/award and, instead, elect to proceed to trial.  On the other hand, a binding arbitration decision/award is generally final and enforceable in the same way as a jury verdict and final judgment. 

At arbitration hearings, the parties to the wrongful death case (through their attorneys) present opening statements, witness testimonies, including expert witness opinions, and make closing arguments. 

The rules of evidence are generally more flexible in arbitration, compared to traditional litigation and trial, which makes the arbitration process less stressful for the survivor(s).  Wrongful death claims generally involve raw emotions, on the survivor(s)’s side.  Dealing with emptiness, anger, stress and shock (caused by the sudden death of a loved one) through arbitration, is generally met with more flexibility and empathy than a court’s rigid rules provide. 

In arbitration, there is no jury.  The disputing parties entrust the resolution of the wrongful death claim to the arbitrator(s) – usually one or three arbitrator(s) – selected by the parties.  The legal basis for arbitration is an arbitration agreement, which may have been entered into by the decedent (such as in an assisted living/nursing home contract) or mandated by the judge in the court where the wrongful death lawsuit is filed. 

The cost of arbitration is also significantly lower than the cost of litigation.  The informal and flexible nature of the arbitration procedure requires less time for the parties and their attorneys to prepare for the arbitration hearing.    Unlike at trial, the reports and/or depositions of expert witnesses, for instance, can be summarized and presented at the arbitration hearing.  Thus, the expert’s physical presence at the arbitration hearing is generally not required, which leads to significantly lower expenses. 

In contrast to court litigation, arbitration proceedings are not generally open to the public, which is another of the advantages which arbitration has over a traditional court trial. 


In comparison to other civil claims, mediation and arbitration are especially suitable for resolving wrongful death cases. 

The benefits of these alternative dispute resolution procedures provide the survivor(s) with compassion, empathy and acknowledgment, along with the prospect of a favorable resolution of the wrongful death claim reached (i) through mediation, or (ii) the decision/award of the arbitrator(s).