Alternative Dispute Resolution, Alternative to what?

march 9, 2018

. . . . .Alternative to spending lots of money and relying on a decision mechanism that involves people you’ve never met, who don’t know you and know very little about your case.

The traditional mode of case resolution involves litigating your case, discovery, depositions, motions, trial preparation and trial. A very expensive proposition from beginning to end. A jury trial involves trying your case before a jury of 6 or 12 people who don’t know you and know very little about your case. While you are allowed to get an idea of the backgrounds and life experiences of the jury panel through voir dire, you simply don’t have enough time to get to know everything about the people who will be the ultimate deciders of fact in your case. Ask any trial lawyer and they will tell you that juries can be very unpredictable.

The reality is that construction litigation is often a war of financial attrition. Which side has more money to spend on legal fees. If you are the David in the David versus Goliath equation, you better hope you have a great case, that its an attorney's fees case in your favor and that you can get your case resolved quickly. But, what if there was another way; an alternative way to resolve your case. A way that didn’t cost nearly as much money and left some of the decision making power in your hands. That alternative is mediation.

Mediation can be particularly useful in construction cases. Mediation involves parties with adverse positions coming together in an attempt to reach a mutually agreeable settlement. A mediator presides over the mediation and acts a go-between, between the parties. The mediator in this setting often has construction experience and can provide feedback about the strength and value of your case.

Mediations in small and medium sized cases can often be resolved in one sitting, saving the parties from months of costly litigation. Larger mediations can be resolved over the course of more than one sitting. The downside to mediation (or the upside depending on how you look at it) is that while a party can be compelled to participate in mediation (through, for instance, a contract clause requiring mediation as a mechanism of dispute), a party cannot be compelled to actually settle their case through the use of mediation. Mediation involves a voluntary decision by both parties. Mediation can also be an effective tool to educate an unreasonable opposing party as to viability or value of their case.

Mediation, the object of which is resolution of the case by settlement, usually involves compromise on the part of the both sides; the defendant agrees to pay more than he would like, and the plaintiff agrees to accept less. What you are trading, in agreeing to resolve your case, is the risk of uncertainty of the jury or decision maker other than yourself.

If the case can’t be resolved by mediation, parties often agree to resolve their case by use of arbitration, which is similar to a bench trial where an arbitrator hears and decides your case. More on arbitration in our next entry.