the number of trials has declined drastically, the number of court filings
has increased more than 5 fold in our Federal courts alone! The drop in
trial rates suggests the changing demand for court services versus resolution
options to conclude disputes.
What is Alternative
Alternative Dispute Resolution (ADR) refers to alternative ways for resolving
disputes as opposed to going to trial. ADR offers a variety of techniques
to assist disputants in arriving at resolutions which are more expeditious,
less expensive and, consequently, far less draining from an emotional,
psychological and economical point of view for the participants. The following
methods of ADR are the most commonly known forms, but they are not the
only ones available.
Mediation is a process in which a neutral person, agreeable to the disputing
parties, acts as a facilitator to their negotiations and assists them
in arriving at their own mutually-acceptable solution. Mediation may occur
before litigation has commenced or at any time before the trial.
There are many different mediation techniques or styles but two of the
most common are the facilitative and evaluative styles. The main difference
between the two is that in the evaluative style the mediator is much more
actively involved in getting the case settled. The evaluator suggests
how to settle the dispute and will often evaluate the case for the parties.
In a facilitative role the mediator will concentrate on getting the parties
to communicate with each other in order to come up with their own solutions
to their dispute. It is important to note that in practice many mediators
blend the two styles and develop their own.
Different states and counties have jurisdictional limits to define when
a court case should be sent to arbitration. Appeals may be filed with the
court after an arbitration award is received. The appeal involves a court
or jury trial in Superior Court. However, there are strict penalties imposed
if the appealing party does not obtain a result better than that obtained
in the arbitration.
Arbitration is a process where a neutral third party or parties act(s)
as an adjudicator or decision-maker on a case. This process is more informal
than a normal trial. It is frequently held in the office of the arbitrator,
generally takes less than one day and results in a decision that may be
binding or non-binding.
A settlement conference is similar in many ways to a mediation. A settlement
conference is generally held by a judge shortly before a scheduled trial.
The judge, as a neutral third party, will try to assist parties in settling
their dispute before the trial. Settlement conferences can save litigants
both time and money. Individuals who are involved in a lawsuit may request
a settlement conference from a judge after a trial date has been set.
This procedure is directed at helping individuals involved in a dispute
to narrow the issues over which they disagree to the ones that are really
pertinent to their case. The parties and their attorneys meet with a neutral
expert who guides them in assessing the merits of their case and then
gives them a range of monetary damages that would probably be the decision
if they went to trial. Neutral evaluation is helpful to people who have
large, complex cases. The evaluator has expertise in the subject matter
of the case and can act as a settlement facilitator if the parties choose.
Individuals, lawyers and judges may suggest the use of a neutral evaluator
as a means of moving the case toward settlement.
Summary Jury Trial
This procedure uses jurors to provide an advisory opinion to parties in
a lawsuit. There are many different types of summary jury trials, but
in a typical one the jurors hear an abbreviated trial in which each side
is given a limited period of time to present their case. The number of
witnesses is limited as well as the time allowed to the attorneys for
their arguments. The jurors will deliberate after both sides have presented
their case and then the jury will render a verdict. Summary jury trials,
like arbitrations, can be binding or non-binding. The advantage of a summary
jury trial as opposed to a trial is that a summary jury trial can be done
in a day, instead of considerably longer. This results in great savings
to the parties and the Court.
Another advantage of summary jury trials is the flexibility afforded.
Parties can agree on how the summary jury trial will be performed. For
example, the parties may choose to have a binding summary jury trial in
which a high and low verdict is agreed to by the parties and not revealed
to the jury. If the jury gives a verdict which is below the low agreed
upon by the parties, the plaintiff will get the agreed-upon low number;
if the verdict is above the agreed-upon high number, the plaintiff receives
the agreed-upon high number. If the jury comes to a number between the
agreed-upon high and low numbers, that number will be binding on the parties.
Summary jury trials are excellent vehicles for resolving cases in a cost
effective manner with input from an actual jury.