By: Nick Marzuk
Alternative Dispute Resolution: Why it’s Better than the Alternative of Trial
As a law student, I was under the impression that mediation and arbitration were either uncommon or part of a small niche of the law – something I would rarely use, if ever. Then as a practitioner and trial lawyer, the value of these practices became clearer to me. Now, as a mediator, I see how great they are for everyone involved.
Use Them Early and Often
Parties to a dispute/lawsuit will spend thousands of dollars on experts, exhibits, and attorneys’ fees to find out what their case is about and posture their position. A lot of those expenses are building the case for trial. Yes, due diligence is important, and using mediation or arbitration without knowing anything about one’s case is not a good idea for anyone, but spending a fraction of that money early on can provide many advantages to both sides, or even bring finality to the case.
More and more contracts are adding pre-suit requirements of mediation or arbitration, making litigation the alternative. Benefits of early mediation or non-binding arbitration include (1) seeing what the opposing side’s theory of the case is, (2) knowing how the opposing side values the case, and (3) for arbitration, seeing how a deciding body would rule on the dispute. If the case does not resolve, these pieces of information are very helpful for both sides moving forward and will likely save both parties in costs/fees in the long run. Lastly, an “unsuccessful” mediation or non-binding arbitration often leads to a subsequent resolution due to what transpired in those attempts.
What’s the downside of an early attempt at dispute resolution? At mediation, as well as many arbitrations, everything in confidential. The cost is small compared to other litigation costs. Lastly, putting the outcome of the dispute into the hands of the parties makes the result something both parties can agree to, unlike a verdict.
Most cases resolve pre-suit, and most lawsuits resolve before a verdict. Sure, there are some cases that are destined to go to trial, but even those cases are mandated to mediate before trial (if litigating here in Florida). Using dispute resolution early and often can streamline litigation, ultimately result in an early resolution, and be in the best economic interest of both parties.
Uncertainty of Trial
An honest trial lawyer will tell you they’ve won cases they should have lost, and they’ve lost cases they should have won. Our judicial system is designed to optimize the chances of the fairest decisions/outcomes. With our system though, verdicts usually result in clear cut winners and losers. Trials should be the last resort – and they are in Florida – but mediation is too often seen by litigants as a required impasse needed before trial.
When someone is wronged and wants “their day in court,” they’re usually leaving the outcome of something very significant in their lives up to a jury. Six strangers, all summoned to jury duty simply because they have a driver’s license, decide cases worth all different amounts of money. One wouldn’t let six strangers choose the next type of car to buy or where to send a child to college. So why would someone want those strangers to decide something so important as a lawsuit? Something that to some is the most consequential decision in their entire life? And then the chance of an appeal? No thank you.
As mentioned, some cases just can’t resolve, and that’s what trials are for. But the uncertainty of trial is such that the parties should be encouraged to try all they can and resolve the dispute while they still have control over the outcome.
Convenience in a Post-COVID19 world
As courts, particularly trials, were on hold for months and months this year due to the global pandemic, the wait to get to trial will grow for each case heading that way. With both sides knowing that their case may be tried a year later than they expected due to the global and judicial landscape, finality is something to consider so the parties can move on past their dispute.
With virtual platforms allowing parties and their lawyers to attend mediations from anywhere in the world, spending a couple hours from the comfort of your home is extremely convenient. The convenience of resolving your case through a virtual mediation rather than in trial, for days and days, is worth, to many, money and peace of mind – that can allow parties to be more giving in their negotiations, which could result in a successful agreement at mediation.
Ultimately, trials will still exist, and they should. Forms of Alternative Dispute Resolution (although the term Dispute Resolution is starting to replace the outdated term) however should be considered more often by litigants than they currently are; getting a resolution that all parties can agree to is something worth considering when weighing the pros and cons of trial
Nick Marzuk is an attorney at The Schiller Kessler Group as well as the founder of Marzuk Mediation. He focuses on PIP litigation and personal injury. Nick lives locally with his wife and kids, and his favorite hobby is cooking. For more information, visit www.MarzukMediation.com