I want to take a moment today and discuss two methods of “alternative dispute resolution” which is also known as ADR. Instead of going to court and presenting your case in a formal trial setting with the judge and jury, there are two other methods that are commonly employed and may be beneficial. They can also save you a lot of money and time.
Let me first mention something called binding arbitration. Each party agrees to an arbitrator and presents their case to the arbitrator in a much more in formal manner than one will present their case in the trial period during trial there are many evidentiary area rules and procedures that must be followed. In front of an arbitrator, and these rules can be more relaxed.
The first common alternative to trial is arbitration. The rules of the arbitration can be set out in advance and an agreement signed by all parties to the matter. You can also agree to the maximum amount of compensation to be received by the claimant and the least amount of compensation they could receive. This is sometimes called a “High-Low” or “Mini-Max.” Given those parameters, sometimes people are more willing to engage in arbitration knowing their full exposure. A hired judge that both sides have agreed to listens to the case and makes a decision that is binding upon all the parties. Essentially, both sides have hired a private judge to hear that matter and avoid the traditional trial system.
Another method that is commonly employed is mediation. Again, both sides to the dispute agree on a neutral third-party who serves as a mediator between the sides. If you have children, you’ve probably served as a mediator without knowing it! The mediator will sometimes put all the parties in the same room, but more often than not, they will separate the parties into two separate locations and the mediator begins shuttle diplomacy – where they are going back and forth from one room to another trying to negotiate a settlement to the case. For a mediation be successful, both sides have to be willing to bend. An intractable party is not going to be helpful in the mediation setting. Therefore, not all cases are well suited for mediation. However, in some cases, mediation is a good idea because you have some kind of control over the outcome of the case rather than submitting your matter to 12 strangers in a jury box.
The courts have become very fond of alternative dispute resolution methods like arbitration and mediation. In fact, parties to most lawsuits are ordered participate in some kind of dispute resolution prior to going to a formal trial. Trials are expensive and time-consuming. The courts are backed up with many cases, and they don’t have enough judges or time to hear the matters as quickly as they would like. Therefore, it can take a long time to get to trial. It’s also very expensive for the parties to engage in trial. Oftentimes, mediation and arbitration are very good alternatives to resolving your case. Make sure to discuss these options with your attorney.
The steps of a lawsuit can be quite complex. Your chance of success in a lawsuit is contingent on whether you can make the right decisions at the right time during this process. An experienced lawyer can help you assess your case and make the right moves. As a party to a lawsuit you have the right to hire an attorney to help you navigate your way through this complex process. More often than not, it is a good idea to contact an attorney to advocate on your behalf to get the best resolution to the dispute. You don’t want to be the party that does not have an attorney. Do not go up against an experienced professional all by yourself.
The litigation process can vary depending on the case, but generally speaking, it proceeds as follows. Two or more parties have a dispute. The dispute might be over a personal injury, a car accident, financial loss, medical bills, emotional distress, wrongful death, or some other matter.
Certain types of cases require a lawsuit to be filed by a deadline. Don’t be reluctant to learn if you have a good case. See a lawyer to discuss. The time requirement is called a statute of limitation. It is important to make sure that you file your lawsuit before the deadline. The law imposes a deadline because as a matter of public policy, we generally cannot hold people responsible forever. Determining what deadlines apply is another reason why it is important to contact an attorney early on in the process. Your attorney can check to make sure you beat the deadline and can help file your lawsuit properly.
In some states it is necessary to make a formal demand to the other party before filing a lawsuit. Often a great way to satisfy this requirement is to have your lawyer send a letter to the opposition stating your demands. A lawyer’s letter is ideal because it not only satisfies the formal demand requirement but it also prompts the opposition to take you seriously. In some cases, your attorney may be dealing with the other party’s insurance company instead of dealing with the party directly. In motor vehicle accident cases, the party at fault is generally covered by insurance, so their insurance company would be responsible for settling the dispute.
Once the formal demand has been made, pre-litigation settlement discussions usually take place between your attorney and the opposition. If a settlement cannot be reached and you are the plaintiff, or in other words, the person seeking monetary or some other kind of relief, the lawyer will file a complaint on your half with the municipal, county, state, or federal court depending on the specific circumstances involved.
In some cases (usually contractual), arbitration might be required instead of a lawsuit. Arbitration is similar to a trial but it is less formal and its judgment may or may not be binding. Your attorney will be able to represent you in the arbitration process. The complaint is a written explanation to the court claiming what has been done to you and what relief is sought. The complaint must be officially served to the other party. This is usually done through a service of summons. Serving the other party can be a tricky process.
Sometimes the other party must first be tracked down then served personally. At other times a summons must be published in a newspaper. Regardless of how the other party in your lawsuit must be served, your attorney will handle this task for you. If you are the defendant, or the person being sued, your attorney must and will file an answer, or a written response, to the complaint on your behalf. As the defendant you typically only have 20 to 30 days to respond to a complaint. Within this time frame you must either, admit or deny the plaintiff’s claim, move to dismiss the lawsuit, and/or assert legal defenses to the plaintiff’s claim. This is a crucial step in the lawsuit process and your attorney will be able to help you to respond in the best manner possible. At this point the defendant can also file a counterclaim or cross complaint, which is a complaint against the plaintiff (or in some cases, another allegedly responsible party). If you are the plaintiff, and the defendant files a counterclaim against you, it would behoove you to have an attorney to defend you against the counterclaim.
Next, the attorney will come up with a discovery plan and a timeline for your lawsuit. The purpose of discovery is for the attorneys to find out what evidence both sides have in their favor in the lawsuit. Both sides generally will be asked to answer interrogatories, or written questions; to partake in a deposition, or oral questioning, which must be answered under oath in front of a court reporter. If this happens to you, your attorney will be present to assist you through this process. You will need to verify your injuries and you could be asked to produce other types of evidence as well.
During this time your attorney can line up expert witnesses on your behalf, accept or reject arbitration, file a motion to compel the other party to reveal information, move for the lawsuit to be decided without a trial, and/or file a motion to narrow issues of the lawsuit or for summary judgment.
If the lawsuit continues, both parties will be asked to attend a pre-trial conference, or a settlement conference, in which the attorneys will try to reach a settlement in order to avoid the uncertainty and expenses of trial. If the settlement talks fail, the matter will head to trial or arbitration. If this happens, your attorney will assist you in presenting evidence and statements to a jury or judge and calling witnesses to testify.
At trial, the process usually is as follows. Both sides present their opening statement, present evidence, cross-examine the other side’s witnesses, and present a closing argument. After both sides have presented their cases, the judge will give instructions to the jury or the judge will decide the case. Next, there will be a judgment based on the jury’s or the judge’s decision.
If either side is unhappy with the judgment post-trial motions and appeals are likely to follow. Either the winner or loser can appeal. Even a winner might appeal the amount of the reward. Both sides have a right to make an appeal if there was a legal error made at trial. An appeal could take a very long time.
After all is said and done, the next step is to collect the judgment. Collecting the judgment can take a lot of twists and turns and become very complicated. It is a good idea to have an attorney to assist you in this process.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,