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The Difference Among Mediation, Arbitration, and Litigation

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When you feel that another individual or entity has caused you damages in some manner, you can initiate a claim for damages against that party. Most claims are begun by putting the other party on notice of an intent to claim damages that may be economic, i.e., medical expenses, wage losses, property damage; or non-economic, which may include pain and suffering or emotional trauma.

You need not automatically file a claim in court unless the statute of limitations is running out or you feel that negotiating a settlement on your own or with legal counsel will be non-productive. If you do not file your claim, then other procedures may be used in an attempt to reach a satisfactory resolution of your claim.

Litigation is the most extreme way to resolve a claim. It is a court process that can take many months or years to complete with various rules regarding the obtaining and sharing of evidence and its exclusion. Alternatively, a claimant can turn to arbitration or mediation, which are less costly and not as formal and can be initiated at any time.

Generally, before you opt for arbitration, mediation, or litigation, your attorney will have conducted an investigation of the claim including interviewing witnesses, examining the available evidence, talking to experts, and researching the law to determine if the claim has merit and value. If so, then notice of the claim is given to opposing party and the parties may proceed to mediation, arbitration or trial, or any combination.

What is Arbitration?

Arbitration is similar to a trial but without a jury and has more relaxed rules of the court. The arbitrator is generally another attorney, a retired judge, or another neutral party. The rules of evidence are generally followed although the arbitrator has discretion in what is admissible and may not strictly follow the evidentiary rules.

Under the new rules, if a plaintiff certifies the case for arbitration, the Plaintiff may not request a trial if unhappy with the outcome.  The defendant retains the right to a new trial before the court or jury if unhappy with the result. There are situations when contractually a party has given up the right to jury trial and must go to binding arbitration. If the subject of the claim concerns a labor dispute or other work-related incident, or a contractual dispute, then you may have waived your right to a trial and consented to binding arbitration. If so, the contract will have had an arbitration clause stating that the matter will be arbitrated before a certain body, such as the American Arbitration Association (AAA). This is a national organization with offices in most major cities. Most of the arbitrators are retired jurists.

Of course, you and the other party or parties may agree to binding arbitration at any time during the pre-litigation or litigation phase. If it is non-binding, then the parties will usually have a period of time to reject the award after it has been rendered and then proceed to litigation.

In most cases, the arbitration will consist of:

  1. Selection of arbitrator. Most arbitrations are conducted by a single individual, though there may be 3 in some complex matters. The parties are usually given a list of potential arbitrators and asked to make a selection and eventually to agree with someone.
  1. Pre-arbitration. The parties may meet with the selected arbitrator and discuss the sharing of information. Depositions may be scheduled and evidentiary matters resolved. A schedule of when all information is to be received and depositions, if any, is then agreed upon. In some arbitrations, no depositions are taken and the evidence in the hands of the claimant is whatever he or she is able to obtain without the benefit of the discovery process where certain evidence is required to be exchanged. Or, a court may have a mandatory non-binding arbitration phase after the discovery process is completed if the matter was filed.
  1. At the hearing, testimony is received and documents presented into evidence. Usually, the parties will agree beforehand on the admissibility of documentary evidence. Medical records and bills come in under Arizona rules of arbitration without the need to bring in the doctor or anyone to verify the bills. The arbitrator will consider any objections to evidence or testimony by the parties. If testimony is received, the opposing party is allowed to cross-examine the witness.
  1. After all the evidence is submitted, the parties make their closing arguments. There is generally less drama involved since no jury is present. The arbitrator usually is given 30-days to issue an award or to make a ruling.

Generally, there is no appeal to a contractually required binding arbitration award or ruling unless the aggrieved party asserts undue bias, fraud, corruption or partiality in the making of the award or ruling. Thus, a ruling that appears to contradict the evidence or does not adequately compensate the claimant despite supporting evidence is not subject to appeal absent a strong showing of bias.

Arbitrations are generally less costly and often take much less time since the parties can control when the matter may be heard. Because no jury is involved, the hearing can be moved along more quickly as well. A drawback is that an arbitrator may be partial to one side, having come from a business or owner background and may not be sympathetic to a worker or consumer. Your attorney is also unable to appeal to the emotions of the jury.

What is Mediation?

Mediation is an informal, alternative dispute resolution procedure whereby all parties agree to meet in a non-adversarial environment in order to achieve a settlement. Usually, a neutral party who is trained in mediation or practices law in the subject area is chosen. Many meditations concern disputes over:

  • Family law-custody, property distribution
  • Breach of contract
  • Sexual harassment claims
  • Neighborhood issues
  • Homeowner's association issues
  • Personal Injury

The parties meet with the mediator separately to present their allegations and arguments along with supporting evidence. The mediator will generally ask each party what is their strongest and weakest arguments or what facts favored or disfavored their side. They are also asked to give a fair assessment of the value of the case.

The mediator will continue to meet separately with the parties and to discuss what the other party is willing to give or accept. The mediator can make suggestions or offer his or her opinion of what may transpire if the matter should proceed to court.

If no resolution is achieved, the parties may simply proceed to litigate or arbitrate the matter if they wish. The results of a mediation or the discussions are not evidence and may not be presented at a judicial hearing or trial. If a resolution is reached, the attorneys may be asked to draft a settlement agreement to be signed by the parties.

What is Litigation?

Litigation begins when a claim is filed in court and becomes subject to the rules and time constraints of the court. It is initiated when your attorney files a summons and complaint in court that contains your various allegations and causes of action against another party or parties who are the defendants. If there are errors in the pleadings or a defendant argues that no recognizable claim in the law has been pleaded, a defendant can move to dismiss the complaint. Other early motions may include asking the court to move the action to a different court or to amend the pleadings.

Next comes the discovery phase. This consists of:

  • Interrogatories
  • Demand for production of documents
  • Request for admissions
  • Depositions of the parties and witnesses
  • Motions to compel production of evidence, protective orders, summary judgement
  • Request for medical examination of the plaintiff if relevant
  • Requests to examine the scene of an incident or an object relevant to the litigation (product or other item that caused damages)

Before trial, the attorneys for the parties create and prepare trial exhibits, disclose expert witnesses, take expert depositions, and prepare motions in limine to exclude certain evidence.

When meeting with the trial judge, the attorneys present the jury instructions to the judge for approval and the court hears and rules on motions in limine. Jury selection is conducted with each attorney given an opportunity to question or voir dire the jury panel and to exclude certain individuals from the panel. After the jury is selected, the attorneys make their opening statements followed by the plaintiff's presentation of his or her case, including witness testimony, presentation of exhibits, and introduction of documents. The opposing party may cross-examine the witnesses and object to the introduction of any evidence.

When the plaintiff has rested, the defendants may present their own witnesses and evidence or rest based on the evidence offered by the plaintiff. The attorneys then make their closing arguments. At the conclusion, the judge reads the jury instructions to the jury, which then retires and deliberates. In a civil case, there is no need for unanimity in the verdict. In Arizona, a civil case requires 8 jurors with a vote of 6-2 needed to render a verdict. In limited jurisdiction cases or where the amount at issue is 10,000 or less, there are 6-member juries where a vote of 5-1 is needed to render a verdict. The standard of proof in most civil cases is by a preponderance of the evidence, usually defined as it being more likely than not that the plaintiff has proved his or her case.

A party may appeal a verdict based on errors of law or where a factual finding is clearly against the weight of the evidence.

Consult the Litigators at West, Longenbaugh & Zickerman

At the Law Offices of West, Longenbaugh & Zickerman, we do our best to resolve cases short of trial so as to save our clients the time, expense, and anxiety of trial. In appropriate cases, we may suggest mediation or arbitration. If your case must go to binding arbitration or a formal trial, our attorneys have the knowledge, resources, skills, and dedication to give you the best opportunity for a favorable outcome. Call us today at (520) 790-7337.

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