As any person who has ever been through litigation can tell you, and as any lawyer will likely advise you, litigation is no walk in the park. It is a demanding and emotional process, which can feel like a prolonged feud, and a profound invasion of privacy.
While for some the redemption that comes with success at trial can make the entire process worth it. For others, the sooner one can get away from the litigation process, the better. Thankfully, for those who find that litigation is not for them, alternatives do exist.
Alternatives to litigation run the gauntlet from completely voluntary negotiation and mediation to more formal, but less invasive, processes like arbitration. Determining what works best for you depends on your case and the ultimate goal you are hoping to achieve.
Alternatives to litigation are also known as alternative dispute resolution (ADR) processes. Some ADR processes simply try to create a more streamlined and less invasive adversarial process, but others try to avoid things getting adversarial altogether.
At one end is mediation. Mediation is a process that involves a mediator – rather than a judge or jury – to attempt to resolve a dispute. In mediation, both parties present their side of the argument, or dispute, to the mediator, along with any supporting evidence or legal case law.
The mediator will review all of the materials before her and then invite the two parties to attend a day (or more) of mediation. During mediation the parties will often be kept in two different rooms and the mediator will engage in what is known as “shuttle diplomacy.” This involves going back and forth between each room discussing the details of the case with each party, identifying weaknesses or strengths in each party’s case, and encouraging the parties to reach a compromise.
Typically during a mediation, one party will make an offer and the other party will make a counter-offer. The mediator will work with these two positions to slowly try to bring the parties to a resolution that is somewhere in the middle of those two initial offers.
If the parties can agree, the mediator will work with them to create a settlement agreement outlining the final details of the compromise that was reached. The settlement agreement can have provisions that impose punishments on either party for violating the agreement. Alternatively, if the mediation is in relation to a case that is already pending in court, the settlement agreement can be adopted by the court to give it more weight and authority.
The obvious benefit of mediation is that it allows the parties to control the outcome of their dispute, rather than leaving the decision to a judge or jury.
The downside, however, is that the process is not binding unless an agreement is reached. At the end of the day, if one party decides not to agree to the compromise or sign the settlement agreement, the mediator has no authority to make them do so. Instead, the parties walk away with no agreement, and head back to the courtroom to proceed with litigation.
Mediation generally works best with parties who are willing to rationally evaluate the strengths and weaknesses of their own positions, or who have a strong interest in trying to avoid the risks of a trial. For particularly complicated cases, or where one party is convinced of the likelihood of their own success, a stronger approach may be necessary.
One alternative to litigation that still employs many of the tactics that one would normally see in litigation, and can create a binding outcome, is arbitration. An arbitration is often conducted like a trial, but before a panel of one or three arbitrators, rather than a judge and jury. Arbitration can be required in a contract, or can be something the parties voluntarily agree to pursue.
Typically, the parties will work together to select the arbitrators, giving the parties more control over the process than the random assignment of a judge. Once the arbitrators are selected, they will conduct a hearing to evaluate the arguments of each party and make a determination of the merits.
Arbitration hearings are similar to a trial, but are usually much faster, and much less complicated. They use simplified rules of evidence and often allow the parties to decide the procedural rules that should apply.
For many parties involved in sensitive cases, one of the most appealing aspects about arbitration is the fact that the proceedings are kept private. This means that documents produced are not released to the public, and even the final award is usually kept confidential.
While arbitration has the benefit of being faster, simpler, and more private than litigation, it can still be a very expensive and adversarial process. Witnesses will still need to testify and be cross-examined, and private records may have to be produced, at least to those involved in the arbitration. Thus, it is often less cooperative and more stressful than mediation.
Deciding how to handle your legal dispute is a deeply personal decision that will likely depend on your finances, your tolerance for risk and stress, and the perceived strengths of your case. For some, litigation is the best way to proceed because it allows for a more powerful, and more certain, outcome.
For others, the benefits of mediation and arbitration are far more appealing than the stresses of trial, and much easier processes to handle. At Romano & Sumner, PLLC, our litigation attorneys can work with you to evaluate the pros and cons of each option and make the decision that best suits your needs. We pride ourselves on serving Sugar Land, Houston, and the surrounding areas. For more information, contact us online or at 281-242-0995.
Romano & Sumner, PLLC