Arbitration process is a mystery to most

If you're an adult, you've signed an agreement to arbitrate some kind of dispute. Arbitration clauses are ubiquitous these days in contracts — with credit card companies, cable companies, pest control experts. That lawyer you hired to pursue your malpractice claim may even have included an arbitration clause in the contract when you hired him.

Even those who oppose the mandatory agreements to seek binding arbitration say arbitration is basically a good process. Some malpractice attorneys are arbitrators themselves.

Most people don't even know what's involved in suing a doctor, much less arbitrating against him. Few people understand how you'd even begin, and the vast majority will never need to find out firsthand.

Usually, when someone has a grievance over medical care, the doctor or health-care facility is notified. In most cases of egregious error, it's settled at that point, without a lawsuit and maybe even without a lawyer. Fewer than 5 percent of cases go to court. Arbitration fans say more claims are apt to make it to arbitration than now make it into a courtroom, although some plaintiff attorneys disagree.

Patients don't have to pay for an arbitrator early in the process (although they may have to pay for a lawyer to shepherd them through the process). "Probably 10 percent or so of cases will get to arbitration. That cost is incurred only after discovery is completed and consideration has been given to settling, and the decision made there's not going to be a compromise," says Elliott Williams, counsel for the Utah Medical Insurance Association and himself an arbitrator.

The agreement that some IHC physicians require patients to sign says the arbitration will be completed within a year, unless both sides agree to an extension.

The plaintiff picks someone to be his personal arbitrator. It could be a licensed arbitrator/attorney or even a best friend. You're choosing an advocate, and you pay for that person's time. The defendant also picks a personal arbitrator, and experts predict many doctors will select another doctor who's familiar with the type of medical care being disputed.

Both sides agree on a neutral, third-party arbitrator, selected from the list of court-approved arbitrators. Each side pays for its arbitrator, plus half the cost of the third one. Each side would most likely also hire a lawyer and must pay for expert witnesses and other legal costs. Whether all these expenses would be less in an arbitration than in litigation is a matter of contention.