My clients often assume that their lawsuit cases will automatically end up in a trial. This is not the case.
As courts have an enormous volume of civil cases on the docket, they are utilizing many different methods of resolving their civil cases. Other dispute resolutions include arbitration and mediation. In this post, I’ll explain the differences and similarities between arbitration and mediation.
What is Mediation?
Mediation is an alternative dispute resolution that the courts utilize to resolve civil cases. Often times a magistrate, private attorney, or the judge will act as a mediator to facilitate settlement negotiations between the parties. Mediations are voluntary and are not binding on the parties. The parties, through the help of a mediator, reach their own settlement on all of the outstanding claims and issues included in a case. The mediation usually takes a day or less to complete. Most of our civil cases are resolved through court-ordered or private mediation.
What is Arbitration?
An arbitration is a hearing that is conducted before a judge or arbitrator. The judge or arbitrator is presented with all of the evidence and makes a decision on the evidence presented and determines a client’s damage claim. Unlike a mediator, an arbitrator’s decision is binding upon all of the parties.
Before taking a case to a mediation, there are several hurdles that must be completed. These include filing the complaint that begins the litigation, completing discovery, and completing the sworn testimony of the parties and all witnesses.
The filing of the complaint that begins a lawsuit does not mean that you have to go to court. It simply puts your case in a formal setting. Defendants answer the complaint and begin discovery. The filing of a lawsuit forces the lawyers representing the parties to exchange written discovery in an effort to resolve the case.
During the litigation process, lawyers serve written discovery called “interrogatories” that are simply questions that lawyers ask to extract all of the information that they need. Lawyers also request discovery called “request for production of documents” to gather all of the documentation that they need to fully evaluate the merits of their client’s claims. They also use “request for admissions” to request that the opposing party admit or deny claims that are asserted in a client’s case.
After the lawyers complete the written discovery stage of the litigation and obtain all of the answers and documents requested, they will schedule the sworn testimony of the parties. Lawyers call these “depositions” and include the various witnesses to the case. Opposing counsel also schedules our client’s deposition. These depositions can last anywhere from a half day to a full day and usually take place in one of the lawyers’ offices. When a deposition is conducted, it will be typed by a court reporter. When the transcript is completed, it will be available for the parties to review.
The sworn testimony of our client is the most important proceeding in the litigation process. It provides our client with a unique opportunity to tell their story about how the accident, slip and fall incident, or wrongful death occurred and explain all of the facts and circumstances involved.
Our clients are typically quite nervous and anxious about doing their sworn testimonies. We thoroughly prepare our clients so that they are comfortable and prepared to answer any question that we anticipate. Although it is natural for clients to feel interrogated, we always tell clients that their deposition is an opportunity to finally tell their side of the story and explain how the auto accident, slip and fall incident, or any other negligent incident impacted their lives. We often spend three to four hours to thoroughly prepare our clients, limit their anxiety, and let them know what to expect at their deposition.
During the discovery process, the court will also conduct hearings called “status conferences” or “pretrials” to ensure that the parties are moving forward with the discovery process and cooperating in exchanging the necessary information in a case. With most of our civil cases, our clients will normally have to appear in court for at least one pretrial. In some Ohio courts, our clients are required to attend a status conference and a pretrial.
In most of our civil cases, we are able to resolve the situations with mediation or arbitration. We are usually able to mediate or arbitrate a client’s case within 9 to 12 months after the filing of the complaint.
Let’s Discuss Your Options
There are some situations where mediation or arbitration are not viable and trial is the only possible recourse. After being fully informed of all of the risks and costs associated with going to trial, some clients authorize our firm to take their case to trial. In such cases, we prepare aggressively for the trial. We prepare our clients and discuss the amount of losses we plan to request from a jury. We also advise clients on the costs involved to prepare and the time trial can take. As previously mentioned, however, we seldomly have to go to trial because it has been our experience that most cases can be resolved at mediation or arbitration.
Contact our office to discuss your options.