It is imperative to have an experienced trial attorney represent you in litigation matters. Among other things, a trial attorney can provide you with all of your options at each phase of litigation and assist you with decisions on whether alternative dispute resolution (“ADR”) is right for you and your case.
Because of the cost of going to trial, the ADR field has increased in popularity. Mediation is the most common form of ADR, and one that courts have the power to order parties to undergo. In a typical mediation, parties go to separate rooms and a mediator will go back and forth, get each party’s perspective and then try to find some common ground. The mediator must keep everything said by either party in strict confidence, and mediation is not binding on any party. Mediation can be beneficial because it provides a neutral, third-party assessment of the strengths and weaknesses of the case. Also, a good mediator can cut through the emotions that often surround litigation. A mediator will usually charge a fee for mediation, and the cost should be split evenly between the parties. Although mediation is not cheap, the cost is most likely still less than the cost of a matter going to trial.
Arbitration is the other most commonly used form of ADR. Arbitration more closely resembles an actual trial. The parties will present their case to an arbitrator complete with witnesses and opening and closing statements. The arbitrator then makes a decision, which can be binding or nonbinding on all parties. In binding arbitration, the losing party usually cannot appeal the arbitrator’s decision to a court. But court appeals are allowed in some types of arbitration. Of course, if an arbitrator’s decision is appealed, it will add expense. Also, although the decision of an arbitrator usually has no precedential value to the court, the decision can still be admitted in the court appeal, and the appealing party has a weaker case. In short, do not enter into binding arbitration with the thought that an adverse decision can just be appealed without affecting the court proceeding.
Nonbinding arbitration is rare, however, in certain instances it can be extremely helpful. The upside to nonbinding arbitration is that it allows the parties an insight into their relative strengths and weaknesses without having to go through a full-blown trial. There are obvious downsides to nonbinding arbitration: You have to conduct a “mini-trial” that will add expense to your lawsuit, you may give away a strategy that might have been more effective for the first time at trial, and since it is nonbinding the arbitrator’s decision does not end the dispute.
Binding and nonbinding arbitrations come in all shapes and sizes. The type of arbitration that I have enjoyed being part of the most is called “high-low arbitration.” In high-low arbitration, the parties agree ahead of time on the maximum and minimum possible award. The arbitrator is typically not informed of the high-low numbers and makes a decision based on the evidence presented by the parties. The arbitrator’s award is accepted if it falls between the high and low numbers or is adjusted upward if lower than the low number and downward if higher than the high number. This arrangement may seem a little odd, but it can be extremely helpful in situations where liability is admitted (so some award needs to be made) and the parties are relatively close to a settlement number but just cannot get that final number agreed upon. In essence, if you can get the other party to agree on a format, arbitration can fit any number of different needs and scenarios.
At the end of the day, it does not make sense to go to trial in most civil matters, which is why so few do. Alternative dispute resolution is another tool that an experienced trial attorney can use to help you keep the costs of litigation down. It can also be used to gain insight into the relative strengths and weaknesses of your case, which can be important in determining whether settlement is preferable to trial. Remember, you, the client, has the final say on what steps are taken during litigation, but it is important to have a trial attorney that presents you with all available options so you can make informed decisions.
Arenstein & Andersen Co., LPA, located in Dublin, Ohio, provides comprehensive litigation representation services. We can help with all aspects of civil litigation, including representation in jury trials, in most areas of Ohio and Federal law.