When a person gets into an accident, suffers a loss, or attempts to remedy a wrongdoing, there is a mistaken belief that most cases culminate in a trial at district or superior court. This is a falsehood. Many cases are resolved between the parties through alternative dispute resolution such as arbitrations or mediations. In some situations the court requires the parties to mediate, in other situations the parties have bound themselves to be before an arbitrator to adjudicate the case on the merits much like a judge and jury would. Mediations and arbitrations are very different and have vastly different results. We will look at each in turn.
To begin with, the ultimate hope for an arbitration or a mediation is that the parties resolve the matter. This is called a settlement. A settlement is normally effectuated by the parties dismissing the underlying action, or agreeing to waive any right to a trial by jury to pursue their causes of action, in return for the requested relief. The requested relief is typically a sum of money that may or may not be disclosed depending on the confidentiality agreements the parties sign at the end of discussions. Attorneys typically encourage settlement prior to litigation as juries are unpredictable. Some of the greatest attorneys have lost what appear to be the best cases due to perceptions and insights of the members of the jury. In many situations it is necessary for the parties to go to court when they cannot agree on what a person may (or may not) be entitled to. In the event that the parties are open to meaningful settlement discussions they can come in two flavors: mediations and arbitrations. Continue reading →