Civil courts, trying to manage busy caseloads with reduced staffs, are pushing litigants to seek alternative means of resolving their differences.
“Alternative dispute resolution (ADR) is the debt that all civil litigants pay. One way or another, everyone has to pass through some form of ADR during the life cycle of his or her litigation,” says Brock R. Lyle, a partner at Ropers Majeski Kohn & Bentley PC. “Everyone has the right to a trial by a jury of their peers, but most cases can be resolved without one. Courts cannot force you to resolve your case through mediation or some other alternative means of resolution, but they can, and will, strongly encourage you by placing settlement stops and incentives along your path to trial.”
Smart Business spoke with Lyle about the various trial alternative methods available.
Do you need to attempt mediation or some form of ADR before a case can go to trial?
There are several nets in place to catch cases before trial. The first is often mediation, a formal negotiation assisted by a neutral professional. At the initial case management conference, the court will inquire whether the parties are willing to go to mediation. If so, the court will set a completion date and follow-up hearing. If one party refuses, the matter is generally set for trial.
There are instances where parties are willing to enter into mediation even before a case is filed, a good way to save money on legal fees. But you run the risk of resolving a case before the parties fully understand it. The parties can conduct as many mediations as they believe would be helpful. Some mediators keep working with the parties after the formal session ends. Certain courts also offer no-cost mediation for simpler cases.
In place of, or sometimes in addition to, mediation, the parties can submit to an early neutral evaluation or an early settlement conference, both of which involve an impartial lawyer or judge evaluating the case and pushing both sides toward a resolution.
The final net is a mandatory settlement conference, where the judge meets with both parties separately to remind them of the costs and uncertainties inherent in trial, and to push them once again to settle. Depending on the type and size of the case, settlement through ADR can help avoid tens of thousands or even hundreds of thousands of dollars in attorney fees.
What other ADR options are available?
Another option is arbitration, which is like a private trial. It can only occur by agreement of the parties or a prior written agreement, because it involves a waiver of the right to a jury trial. Arbitrations can be binding or nonbinding, though the latter is often more informational because one or both parties can disagree with the ruling and disregard it.
At arbitration, a retired judge hears evidence from both sides with exhibits, witnesses and many elements of trial. The arbitrator then issues an award that the prevailing party has confirmed by the court.
Of course, either attorney or party can always discuss settling the case and try for an informal resolution over coffee or lunch.
How do you know what ADR method is best?
In many cases, the contract or agreement at the center of the case will require mediation, arbitration or both. For example, most real estate contracts include mediation provisions. As an added ‘incentive,’ California case law cuts off a party’s entitlement to have attorney fees reimbursed if the party is unwilling to mediate, or starts a case without first offering to mediate. If no ADR process is spelled out in a written agreement, the posture and progress of a case often dictates the best fit.
What are some pitfalls to avoid with ADR?
One concern is going through an ADR process before the case is ready. If essential information needs to come forward in written discovery, depositions or expert testimony, an early mediation may be a waste of time and money.
The ADR process also creates pressure to settle that can force a disadvantageous position. After investing time, money and energy in preparing for and attending the ADR session, parties often feel they should settle. There is no shame in walking away.
Finally, parties can abuse ADR by going through the motions without any intent to settle, delaying the matter and racking up attorney fees. It is useful to see if the other party is ‘in the ballpark’ before the cost and effort of preparing for an ADR session. ●
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