Thought Leaders: Are There Alternatives to Litigation?

By Savannah M. Nelson, Esq. - Otis and Bedingfield, LLC — 

The process of civil litigation and trial can result in costly outcomes for all parties; however, it is important for anyone involved in a civil legal matter to note that there are various ways to create and encourage dispute resolution.

The U.S. Department of Labor defines Alternative Dispute Resolution, or ADR, as the agreed-upon use of a neutral party to avoid litigation by assisting the parties involved in a dispute to reach an agreement without going to trial. The goal of ADR is for all parties involved to work towards voluntary resolution of the dispute, and settle all legal issues between them, hopefully resulting in a final written agreement. Settlement agreements often carry a negative connotation, and many people would prefer to let the courts and a judge hear all the evidence and make a fair and impartial decision based on what is presented at trial. However, both businesses and individuals alike can, and often do, benefit from avoiding the costs and animosity of trial litigation.

Many standard contract terms will require mediation or dispute resolution if a contract dispute arises. The purpose of this requirement is to reduce costs and is often in the best interest of the parties. ADR is more than just settlement discussions between attorneys. There are several different options within the category of ADR, including mediation, arbitration, neutral factfinding, and minitrials. Each option offers benefits depending upon the type of legal issue, but all ADR options are designed to help the parties resolve disputes in a more agreeable and neutral environment before a trial may become necessary.

Trial may not be the best or most practical option for a particular type of dispute, even if an action is already pending in court. Courts understand this side of the legal process and often encourage parties to participate in settlement discussions from the beginning of a dispute through the judgment phase.  Courts may even require the parties to participate in ADR, certifying that attempts have been made to settle the dispute prior to trial. Due to the costliness of proceeding to trial, an experienced litigation attorney will often conduct a cost-benefit analysis to help their clients better understand their positions, the options they have in proceeding with ADR, and what might be the likely outcomes of settlement discussions, versus continuing to trial.

It is advisable to seek legal advice from an experienced litigation attorney to assist in navigating the dispute resolution process at all stages of a potential or pending legal dispute. The assistance of a knowledgeable litigation attorney can be vital to fully understanding the costs and benefits of proceeding to trial or finding an alternative settlement solution with the use of ADR options.