Danielle Hernandez

Ms. Sullivan

College Law

September 23, 2010

How Do We
Settle this
Dispute?
 I. Seated in the middle of the room is someone listening carefully to everything you say.

Your employer who wronged you sits on the right side of the room and you sit at the left.

Arguments commence in the hearing as the situation at hand is described. This authority figure in

the middle asks both of you the proper questions to reach an appropriate solution. This

description, at first glance, brings to mind a judge in a robe, a plaintiff, and a defendant, in a

court room; however, if you replace the judge with an arbiter or mediator, you have something

very different. Both the traditional litigation system and the alternative dispute resolutions of

arbitration and mediation are similar processes. Each system is an efficient way to settle disputes

between parties and each have their own benefits and shortcomings.

II. When you have been wronged by a party, the basic route that you would take in making a

case of the situation would be litigation. Litigation is the entire legal process before you present

your case in court as well as the actual hearing before a judge and, if wanted, a jury. This

includes the hiring of a lawyer, paperwork, discovery, presenting evidence, and deciding all of

the other details associated with your case and lawsuit.

The first step in both civil and criminal litigation (civil usually dealing with a lawsuit

between parties and criminal often dealing with fine, imprisonment, or capital punishment) is to

recognize that there is a problem at hand and a need for a legal resolution. When the accusing

party (the plaintiff) has acknowledged the problem and intends to do something, they then notify

the opposing party (the defendant). Often, the defendant will reject the claim thus leading the

plaintiff to hire a lawyer. (Feinman pp 93-106) If the party shows the inability to afford an

attorney, then one must be provided for them as constituted in the equal protection clause of the
14th amendment to the Constitution. ("Cornell Legal Information Institute"). They could also

choose to represent themselves (pro se) which is common within small claims court. Once the

lawyer has been hired, the plaintiff notifies the defendant of the complaint and terms of litigation

in writing. The defendant then can respond to the complaint, ignore it and risk the plaintiff

entering default against them, or object it. (Feinman pp 106-107)

The next leg of your journey through the litigation process can be a lengthy one.

Discovery is the state of litigation where you find out exactly what the other party knows. During

discovery, each party can require the other party to turn over physical evidence, documents, or

participate in a physical examination (this is especially so in torts). Each party’s lawyers can also

require depositions where they question the opposing party under oath. This is not to be confused

with the cross-examinations given during trial. The questions in a deposition must be much

broader. At this point in pre-trial litigation, the parties may begin to consider alternative dispute

resolutions such as arbitration or mediation to avoid going to court. These will be discussed in

the following section. If the parties agree to continue with litigation, they will then be up to the

trial stage of litigation where they will present their case before a judge and, if desired, a jury.

Here, evidence will be offered, the plaintiff, the defendant, and witnesses will be cross examined,

and the jury or judge will ultimately come to a binding decision. (Feinman pp 116-120)

III. “In the state courts of the 75 most populous counties in the US in 1992, about 75% of

civil cases were disposed of by agreed settlement or dismissal, while only 3% went to trial.”

(Burnham 246) Alternative dispute resolutions namely, litigation and arbitration, have been

adopted by many wishing to settle legal issues without the use of litigation. Parties may initially

opt to use arbitration of mediation or they may select to switch to one of these during the

litigation process, as mentioned in the previous section. Arbitration would require the consent of
both parties. To notify the other party of your intent to arbitrate, you send them a demand which

is a written document similar to those used in litigation. A more detailed comparison will be

offered in the next section. (Feinman pp 121)

Once two parties have both agreed to arbitration, an agreement should be written. The

terms of the arbitration can, however, still be modified once the process has begun. This

agreement may choose the desired arbiter and the gravity of the decision he issues. Before

continuing to the arbitration hearing, there is, similar to litigation pre-trial, a discovery stage.

Unlike litigation, however, parties involved in arbitration often skip the discovery stage or may

require a deposition on occasion. When the arbitration trial is conducted, evidence may or may

not be presented and, although the arbiter’s decision can be binding, the parties can choose to

make it non-binding. (Bennett pp 91-102) When the arbitration deals with a party seeking money

from the opposing party, then high-low arbitration is conducted. In high-low arbitration, the

plaintiff will name the high monetary value that they are seeking and the defendant will name the

bare minimum that they are willing to pay. The arbiter, who knows nothing of these chosen

amounts, names an amount, as well. If it is higher than the high amount, then the plaintiff’s

requested amount is enforced. If it is lower than the low amount, then the defendant’s requested

amount is enforced. If it lies between the two amounts, then the number that the arbiter decided

on becomes the enforced amount. ("Alliance for Education in Dispute Resolution")

Mediation is an alternative dispute much like arbitration, but is often more informal.

Mediation is often conducted between parties seeking to maintain a good relationship. Unlike a

judge or an arbiter, mediators are often volunteers who may or may not have received a great

amount of training. Mediation has a process much like arbitration except that the mediator’s

decision is not binding and, moreover, the parties are often encouraged to come to their own
decisions. Sometimes mediators are asked to give their prediction on how a case may turn out in

court. Mediators making these assessments do require substantial backgrounds in law. ("Alliance

for Education in Dispute Resolution")

IV. Litigation is often cast aside for these forms of alternative dispute resolutions because of

its many shortcomings. Delays for civil cases can be incredibly lengthy due to overcrowded

dockets. Sometimes parties are persuaded to switch from litigation to arbitration or mediation

after discovery due to back-ups in the courts. (Feinman pp 121) Attorney’s fees can be thousands

of dollars per day and must only be added onto the costs for discovery and the court costs. Other

than money and time being drained from the parties, they will also be the victims of emotional

distress. Relationships can be battered by the end of litigation which can be detrimental if dealing

with close friends or colleagues. It is overwhelming to see how much time, energy, and stress

can be involved in this process. (Calvi, and Coleman pp 77-79)

People often still choose to opt for litigation because juries can often be sympathetic. In

addition, there is the knowledge that a judge will hold to the strictest interpretation of the law.

(Calvi, and Coleman pp 77-79)

Abraham Lincoln once said, “Discourage litigation. Persuade your neighbors to

compromise whenever you can. Point out to them how the nominal winner is often a real loser-

in fees, expenses and waste of time.” (Kemp) Lincoln touches upon expenses and time consumed

during litigation and then promotes arbitration or mediation as an alternative. Since litigation’s

main inadequacy lies in money and time, these are also the primary benefits of both arbitration

and mediation. Both of these processes take a significantly lesser amount of time and atr far

more affordable. While litigation requires hundreds of thousands of dollars in lawyer fees, court

fees, and discovery, arbitration simply costs, at most, $500 to $800 dollars a day for an arbiter.
The price is usually much less than this, though. Also, the cost of discovery can be eliminated

since discovery is not always necessary in these processes. The stress and strained relationships

are also reduced since both of these alternatives are rather informal. Mediation is especially

informal and is an excellent way to come to a settlement when dealing with very close parties

such as business partners, neighbors, or family members. The freedom offered to the parties is

also beneficial. It is comforting to both the plaintiff and the defendant to know that they can

choose for the final decision to be non-binding if wanted. Also, there is the freedom to design

your own procedure.

Arbitration and mediation, however, has some downsides. It can often be too informal for

some who would prefer a more binding decision to be made. Also, for parties who are

significantly poor, arbitration and mediation can often end up costing more than litigation would.

In litigation, the law protects the poor but you are not similarly protected in alternative dispute

resolutions. If you demonstrate the financial necessity, you have the right to proceed in forma

pauperis. (Burnham pp 247-248) To proceed in forma pauperis means that, as a poor person, you

are given the permission of the court to seek judicial relief without needing to pay the usual court

fees. (Calvi, and Coleman pp 336) In addition to this, it is also, as brought up in the second

section, your right to have a lawyer provided for you if you can not afford one. ("Cornell Legal

Information Institute") This does not apply to arbitration or mediation. Other critics of arbitration

and mediation argue that it could create an imbalance in society since the wealthy will continue

to be able to afford the expenses of litigation while those with fewer finances will be forced into

arbitration or mediation. Those who argue this feel that these alternatives are more uncertain and

are, overall, lower than litigation. (Calvi, and Coleman pp 78)

 It seems that, in weighing the pros and cons of each types of dispute resolution process,

there is really no path to take. While it may seem that arbitration and mediation have pros that

outweigh those of litigation, it is still particular to the situation. Some cases are simply far too

complex and heavy to be handed over to a mediator or arbiter. Other cases may be too

emotionally strained to be put through an entire litigation process. Finances of the parties are also

determinate of the resolution process selected. Everything depends on the individual case. So

when you sit opposite your opponent and wait to hear a decision from the authority figure seated

before you, will it be a judge, an arbiter, or a mediator. The decision is completely yours.
 Works Consulted

• "Equal Protection." Cornell Legal Information Institute. Cornell University Law School,
19 Aug 2010. Web. 19 Sep 2010. <http://topics.law.cornell.edu/wex/Equal_protection>.

• "The ABCs of ADR: A Dispute Resolution Glossary." Alliance for Education in Dispute
Resolution. Cornell University, 2000. Web. 19 Sep 2010.
<http://www.ilr.cornell.edu/alliance/resources/basics/ABCs.html>.

• Bennett, Steven C. . Arbitration: Essential Concepts. 3rd ed. ALM Publishing , 2002.
Print.

• Burnham, William. Introduction to the Law and Legal Systems of the United States. 3rd
ed. St. Paul, MN: West Group, 2002. Print.

• Calvi, James V., and Susan Coleman. American Law and Legal Systems. 4th ed. Upper
Saddle River, NJ: Prentice Hall, 2000. Print.

• Feinman, Jay M. Law 101. 2nd ed. New York, NY: Oxford University Press, 2006. Print.

• Kemp, Edward J., Abraham Lincoln's Philosophy of Common Sense, vol. 1. New York:
New York Academy of Sciences, 1965