<em>Legally</em> <strong>Speaking</strong>
 
 

 

Thinking of suing? Consider these options
Jim Juliano - Fall 2006

You don’t have to race to the courthouse whenever a dispute seems unsolvable. Alternatives are available, and, in many cases, they present distinct advantages over traditional litigation.

Where state and federal courts were once the only choices for relief, the delay, risk and enormous expense of traditional litigation have led the legal profession to develop other paths to decisions. These alternatives are generally faster, less expensive and more private than the conventional courthouse route, and they can save taxpayer money.

Here are some of the choices:

  • TRADITIONAL LITIGATION. One party files a lawsuit against the other party in state or federal court, and a judge takes the case through the process of traditional discovery, pretrial motions and settlement or trial by jury or by the judge.

    Traditional litigation takes many months and sometimes years, especially if the case goes to trial and post-verdict appeal. Legal fees and other litigation costs escalate quickly, and the case may eventually lose its focus on the issues that the parties were fighting over in the first place.

    In many cases, for various reasons, traditional litigation may be the only option.
  • ARBITRATION. Arbitration has been common in the major leagues, where it is customarily used to set salaries for players. In both the major and minor leagues, it is often included in concession and vendor agreements. In the minors, it may also be present in labor agreements with unionized employees, such as parking attendants and ushers.

    In arbitration, by agreement of the parties, a neutral arbitrator decides the issues in a dispute. Arbitration was one of the earliest alternatives to traditional litigation and developed quickly as a favored method to resolve union and labor disputes.

    Arbitration may be binding or nonbinding. If binding, the arbitrator’s word is final. There is no appeal to a court unless the arbitrator exceeds his or her authority under the arbitration agreement or another serious problem arises with the process itself. If nonbinding, the parties have appeal options.

    Arbitration usually involves one arbitrator, but in some arbitration agreements a three-arbitrator panel is required.

  • MEDIATION. Also by agreement of the parties, a neutral mediator assists the parties in negotiating a settlement. The main difference between a mediator and an arbitrator is that the mediator has no power to decide the case; instead, he or she works to bring the parties together for an agreement. If the parties do not reach agreement, the mediator’s job is over, and the parties must resolve their dispute in some other way.

    An advantage of mediation is that it allows the parties more control over the outcome of their case. Although mediation is not new, it has been more popular within the past five years as the court dockets lengthen and litigation expenses increase.

  • PRIVATE JUDGES. Hiring a private judge is a fairly new process. Not all states permit this approach. In Ohio, the legislature adopted a statute that allows parties to agree to hire a retired judge and to vest that judge with the same powers and jurisdiction as an elected judge in traditional litigation. The private judge has the power to make final decisions, subject to traditional appeal.

    A private judge will charge a fee, so the private judge will be more costly than a publicly employed judge. On the other hand, the efficiency of the overall process, including the time it takes for resolving the issue, the legal fees and the expenses, may make up for the judge’s fee. In addition, although the basic pleadings and judgment appear on the public docket, the details of the case are more easily kept out of the public eye. This point is often attractive to divorce litigants.

All legal disputes have the potential of great cost, risk and delay, but more parties are looking at alternatives to settle their cases efficiently.

 

 
 
 
 
 
 

This website contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.

Copyright 2006 by L. James Juliano Jr.
Legally Speaking® is a registered trademark of the law practice of L. James Juliano Jr.