There Are Options To Litigation
Going to court, commonly called "litigation," may decide the dispute, but the
process can be time consuming, expensive and emotionally draining. Fees may
escalate well beyond the original estimate, and the time it takes to reach a
decision in our busy courts can be months or even years, sometimes putting all
other plans on hold. Many times, relationships suffer from the pressure. In
considering all these circumstances, exploring options other than litigation
can be a worthwhile pursuit.
"Alternative Dispute Resolution (ADR)" is the term used to describe all the
other options available for settling a dispute which once had to be settled in
court. ADR processes such as arbitration, mediation and settlement conferences
are less formal than court and provide opportunities for litigants to reach an
agreement using a problem-solving approach rather than the more adversarial
approach of litigation.
For parties to the dispute, these options:
For attorneys, benefits in addition to those mentioned above include:
are highly cost effective;
take less time to resolve;
foster future positive relationships;
are rated as highly satisfactory;
provide more control over the outcome.
ADR can reduce the time, expense and stress of litigation by using the most
appropriate dispute resolution method to settle the case. 97% of civil cases
settle before trial, so it's worth considering these alternatives early in the
shorter time for disposition;
quicker results for clients;
ability to represent or advise more clients;
fewer fee disputes;
greater client satisfaction.
What Are My Options?
The Court sponsors three highly effective ADR programs: arbitration, mediation
and settlement conference, each described below. Any of the programs may be
"mandatory," that is, ordered by the court, when the amount or award in dispute
is under $50,000 per plaintiff. However, these alternatives to litigation may
also be requested by the parties at any time on their own initiative, in which
case they are considered "voluntary."
In arbitration, each side in the dispute presents its case, including evidence,
to a neutral third party called an "arbitrator," rather than to a judge. The
arbitrator, who is an attorney, issues an award based on the evidence just as a
judge would, within a time frame set by the Court. Although evidence is
presented, arbitration is a less formal process than litigation.
Arbitration may be "binding" or "non-binding" depending on what the parties
agree to before beginning the process. "Non-binding arbitration" means that the
participants in the case are not required to accept the arbitrator's award;
they may request a "trial de novo" which returns the case to the Court's
calendar as if the arbitration had not occurred.
It is important for parties to understand that, in agreeing to binding
arbitration or by not requesting a trial de novo, they are waiving their right
to a trial and are accepting the arbitrator's award as a final decision.
Parties may also request a form of binding arbitration called "baseball
arbitration." In these cases, parties in the dispute make their own
recommendations to the arbitrator for an award. The arbitrator is then required
to choose one side's proposal and can make no changes or modifications in the
proposals. (In other arbitration sessions, the parties do not make
recommendations for awards; the arbitrator makes an independent decision).
Because no changes can be made in the proposed awards, parties are encouraged
to make reasonable proposals.
A case referred to arbitration can be withdrawn from the process before the
arbitration session only by Court order.
As with the other ADR processes, mediation may be either "mandatory," that is,
ordered by the Court, or "voluntary," requested at any time by the parties to
In mediation, a neutral third party called a "mediator" helps participants in
the dispute create their own resolution. Unlike an arbitrator, the mediator
makes no decision or findings about the facts of the case and makes no award.
Rather, the mediator helps facilitate a discussion in which the parties reach a
mutually agreed upon settlement. Therefore, mediation allows for more creative
resolutions to disputes than other ADR processes.
To accomplish this, mediators foster communication among the parties to:
clarify issues, interests and needs;
explore the merits of each party's positions;
identify possible options for resolution.
One of the primary goals of mediation is enhancing the future relationship of
the parties involved in the dispute, so the process is less adversarial and
formal than either litigation or arbitration. For example, the rules of
evidence and formal court procedures do not apply to mediation.
Sometimes mediation does not result in an agreement or resolution. In these
cases, the parties have the right to return to court for a litigated decision.
If the case returns to court, the mediator cannot be called to testify or
produce notes or records of the mediation, as the rules of evidence are not the
same for mediation as they are for litigation.
Mediators are not necessarily attorneys. However, all mediators, including
attorneys, have received training or have the experience required by California
law to be mediators for the Courts.
Survey results of participants in mediation consistently demonstrate a high
satisfaction rate with both the results of the mediation and with the process
itself. Because the resolution is determined by the parties and is not imposed
on them, settlements achieved in mediation are upheld easily by the parties,
and the agreements reached help to foster future positive relationships.
The third ADR method is called a settlement conference, and, like the other
processes, may be mandatory or voluntary. In general, if the settlement
conference is mandatory, that is, ordered by the judge, the parties to the
dispute and their attorneys will meet with the judge who conducts a conference
aimed at negotiating an agreement to settle the dispute rather than going
through the formal trial process.
The Court also offers voluntary settlement conferences, conducted by settlement
officers who are either retired judges or highly experienced ADR providers with
substantial litigation experience. Like the other ADR processes, the voluntary
settlement conference must be held within a time frame set by the Court.
Unlike arbitration, the settlement officer does not make a decision or an award
in the case. Instead, the settlement officer assists the parties in negotiating
their own settlement but may evaluate the strengths and weaknesses of the case.
The agreement reached in a settlement conference may be entered into the Court