Making the Case
Litigation is a word we hear a lot. Most people know it has something to do with a lawsuit or going to court, but really don’t give it much more thought beyond that. According to most legal dictionaries, litigation is any action brought forth in a court of law to enforce a particular right. When a person begins a civil lawsuit, he enters into litigation, which involves a series of steps that may lead to a court trial with a judge and jury and ultimately a resolution of the matter.
Before a lawsuit is filed, the person contemplating the lawsuit, the plaintiff, typically demands that the person who caused the alleged injury, the defendant, perform certain actions that will resolve the conflict. If the defendant cannot or will not act to resolve the conflict, the plaintiff may start the lawsuit by serving copies of a summons, which is an order or process directing the defendant to appear in court, and complaint on the defendant and filing the complaint with a civil trial court. The complaint must state the allegations, attribute them to the defendant and request money damages or equitable relief.
If serving the complaint on the defendant does not result in settlement of the issues and resolution, the plaintiff must begin discovery, the gathering of information which will be used to prove or disprove the defendant’s complaint in a court of law. The plaintiff can ask questions of the defendant, and request copies of documents for review. Once litigation begins, the defendant can also use discovery to learn more about the plaintiff’s case. The discovery process can take days, weeks or even years, depending upon the complexity of the case and the level of cooperation between the plaintiff and the defendant. After discovery is completed, most courts require the parties to attend a settlement conference to determine if the case may be resolved before trial. If the parties are unable to reach a settlement at this point, the litigation continues to trial, one or both parties often make settlement offers, in the hope of avoiding court proceedings.
Litigation ends if a settlement is reached. If no settlement is reached, a trial commences and both sides are permitted to introduce evidence that will help to prove their arguments to the jury or court. If the plaintiff makes a convincing case, the defendant may seek to settle the case immediately. On the other hand, if the plaintiff presents a weak case, the defendant may ask the court to dismiss the case. If the trial proceeds to a conclusion, either the jury or the judge (if a jury trial was waived) must decide which party prevails. The trial will end with a jury or judge making a final decision in the case.
Litigation can be a costly and time-consuming process and is therefore often something people seek to avoid. In addition to the expense and time commitment, litigation can be emotionally draining and unpredictable –- until a judge or jury decides the case, you can never be certain of the outcome. Though it may sometimes be the best or only choice in resolving conflict, it may not be the most efficient choice in every case. Therefore, alternative dispute resolution, such as arbitration or mediation, has become an increasingly popular and viable option in many situations.
Arbitration and mediation are similar in that they are alternatives to traditional litigation and can be used in conjunction with litigation (opposing parties may first try to negotiate, and if that fails, move forward to trial). Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. However, often, mediation is thought of as a non-binding process and arbitration as a binding process. So, binding arbitration replaces the trial process with the arbitration process.
In most states, arbitration is governed by state and federal law and there are provisions in the states’ civil practice rules for arbitration. Arbitration is generally conducted with a panel of multiple arbitrators, one for each party of the dispute and a third chosen by the other two, who take on a role like that of a judge, review and make decisions about evidence and give written opinions (which can be binding or non-binding). At the end of the arbitration process, the panel of arbitrators presents an award which is similar to the judgment made by the judge after a court trial. Arbitration awards can be challenged in court, but generally they will only be overturned if the award is the product of fraud, corruption, or serious misconduct by the arbitrator.
Mediation, on the other hand, is generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion and eventual resolution of the dispute. The independent mediator helps both parties to reach a mutually agreed upon settlement and is generally an extension of the parties’ own negotiations. Often, a mediation is referred to as a “supercharged negotiation.”
A mediation session involves a discussion of the disagreement by the parties, as opposed to the formal presentation of witnesses and evidence that happens in a trial or arbitration. The session will normally be attended only by the mediator, the parties and their attorneys. Because of the informality of the process, a mediation can usually be completed in a day or less. It can be a less confrontational way to resolve disputes, as parties attempt to resolve their differences between themselves rather than relying on an often expensive, and time-consuming judicial system.
If you are looking for an alternative to litigation, there are several attorneys at Sumrell Sugg who are certified mediators. Contact us today at 252.633.3131 for more information and to schedule an appointment.
Sumrell Sugg is a nationally recognized law firm headquartered in New Bern, NC. Founded in 1949, the firm takes pride in delivering high-quality legal counsel on an attentive, personal basis to a diverse roster of clients located from the Carolinas to California.
(Sources: www.findlaw.com, www.mediate.com)