Alternative Dispute Resolution: Weighing Your Options

You want to enjoy your backyard, but your new neighbor begins to encroach on your property line, claiming that space belongs to him. Your employer refuses to comply with an employment contract and begins to dock your pay. You slip and fall in the grocery store but the store refuses to cover your medical bills. Regardless of the type of dispute you find yourself in, it is important to know the different ways in which you can resolve that dispute. Contrary to what many people believe, taking someone to court is not the only way to resolve a legal issue.

Alternative Dispute Resolution refers to the procedures used to assist parties in resolving a dispute without litigation. This post discusses the advantages and disadvantages of resolving your dispute through litigation, mediation, and arbitration.

Litigation
Advantages

• The right to appeal – if the judge made an error, you can challenge the judge’s decision.

• Formal Discovery – all parties will be required to disclose any requested discovery as permitted by the rules of discovery.

• On the Record – the proceedings in a court room generally go into public record and can be accessed by anyone.

• Predictability – litigation will always end in a judgment and judges are required to follow precedent in making their decision.

Disadvantages

• Lengthy Process – litigation lasts a long time and consists of several stages such as preliminary hearings and pleadings, discovery, pretrial motions, trial, and appeals.

• Costly – because of the length of litigation, it can be more costly than other forms of dispute resolution as it results in more court fees and attorneys’ fees.

• On the Record – to some, having the dispute be in the public record is an advantage, but to others it may be a disadvantage as many people may want to keep their disputes private and confidential.

• Formal – litigation is much more formal than other dispute resolution mechanisms which many people may find intimidating and anxiety-inducing.

Mediation
Advantages

• Less Costly – mediation is typically less costly than litigation because it happens more quickly and does not result in court fees.

• Less Formal – mediation is not as formal as litigation which may be more comfortable and less stressful to a person.

• Private – mediation typically only involves the parties, their attorneys, and a mediator, and they are generally confidential and do not go on the public record.

• Preserve Relationships – the privacy of mediation may preserve relationships more than the contentiousness involved in litigation as the parties must agree on the chosen mediator and any potential outcome.

• Flexibility – mediation allows flexibility in scheduling as you are not bound by the court’s docket and flexibility in how the parties want to conduct the mediation such as how much discovery will be allowed.

• Negotiation – if they can agree, both parties will leave the mediation with something they want; it is not a zero-sum game.

Disadvantages

• No Guaranty – mediation is like a negotiation, and if the parties cannot agree, the dispute may not be resolved which may result in you ultimately going to court.

• No Procedural or Constitutional Protections – because mediation is more informal, you may not be protected by the same procedural and constitutional rights like you may have in court such as full discovery and the right to appeal.

• Settlement – the relief provided in mediation is typically in the form of a monetary settlement rather than equitable or injunctive relief.

Arbitration
Advantages

• Less costly – similar to mediation, arbitration is typically less costly due to its more condensed timeline and lack of court fees.

• Quick – arbitration happens relatively quickly in many instances and does not involve the same processes as litigation.

• Discretion – the chosen arbitrator has more discretion in how he or she accepts evidence and how it is applied.

• Choice – the party chooses the arbitrator and the arbitrator remains the same throughout the arbitration process whereas litigation may involve multiple judges.

• Confidential – arbitration is generally confidential and, depending on the agreement, the parties may be bound by a non-disclosure agreement to keep the arbitration confidential.

• Flexibility – like mediation, you are not bound by a specific schedule for arbitration and it can occur outside of court hours.

Disadvantages

• Limited Appeal – you likely will not be able to appeal the arbitrator’s decision.

• Mandatory – arbitration may be mandatory which is common in employment contracts.

• Confidential – in instances where a party is bound by arbitration, that party may not want to keep the arbitration confidential such as in cases of sexual harassment.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.