It's The Law
Alternative to Trial Usually Ordered By Judges
I am in the middle of a lawsuit. My lawyer told me the judge will order us to complete alternative dispute resolution before we go to trial. I am not really clear what this means. Can you explain?
A long time ago, attorneys handled all settlement negotiations, often with clients present. About 30 years ago, Florida courts started a more formal settlement approach. Judges started ordering parties to mediation and, later, to non-binding arbitration in an effort to get cases finished without necessity of trial.
Over the years, Florida's Supreme Court adopted formal rules for mediation and arbitration. Criteria have been established for both mediators and arbitrators which requires significant classroom education followed by a period of "practice" under the watchful eye of a certified mediator or arbitrator. It sounds much like how a doctor becomes qualified to practice medicine, in a condensed timeline.
Approximately eighty percent of all cases are resolved at mediation or arbitration and the parties generally pay the fee of mediator or arbitrator. Taxpayers pay the costs of the court system, so is not only a saving of court time but also costs to run the court system.
Judges order most cases to mediation. The order requires the parties and their attorneys to appear in person and usually requires the mediation be conducted within 60 days. If the parties cannot agree on a mediator, the judge will appoint one.
Mediation is relatively informal and it is usually conducted in the following manner. The parties meet in a conference room with the mediator. The mediator explains that the purpose of the mediation is for the parties to reach an agreement and that the mediator cannot force an agreement on the parties. The mediator also explains that all proceedings at mediation are confidential and cannot be used later in the case.
The attorneys for the parties then give statements of the strengths of their case and the weaknesses of the opponent, after which time the parties adjourn to separate rooms. The mediator then goes between the separate rooms discussing the case, maintaining information in confidence if requested by a party and conveying settlement proposals until a settlement is reached or an impasse is declared. If the case settles, the agreement is reduced to writing and signed by all parties and counsel.
Arbitration is a bit more forceful. The arbitrator's role is to issue a decision, just like a judge. Arbitration is conducted informally. Testimony is kept to a minimum and matters are usually presented to the arbitrator through statements and arguments of counsel. The attorneys summarize the case, offer arguments in support of their position and the arbitrator enters a decision.
Unless the parties agree that arbitration will be binding, a judge referral to arbitration is not binding. If it was binding without consent of the parties it would deny them
of due process and their right of access to the courts. Either party may file a motion for trial if unhappy with the arbitration decision. If a motion for trial is filed, it is not an appeal. The trial proceeds as if arbitration never happened, with all formalities associated with trial including rules of evidence. Testimony is not summarized by attorneys but must be from witnesses with opportunity for cross examination.
Trial attorneys know judges will refer most cases to mediation or non-binding arbitration. They are often reluctant to make independent settlement offers, because a settlement offer becomes the new starting point for mediation, even if it is revoked prior to mediation. In many cases, knowing that mediation will be ordered by the court has a chilling effect effort on attorneys trying to settle the old fashioned way.
When a case is resolved at mediation or arbitration, it is usually cheaper and faster than trial. Mediation or arbitration also keeps the courts from getting bogged down in trials or hearings. Because these procedures are less formal than trial does not mean the attorneys' preparation is reduced. In fact, the need for preparation may be increased due to the condensed manner in which cases are presented. Just like at trial, a good lawyer is essential to maximize potential for success in alternative dispute resolution.
By: William G. Morris, Esquire.
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: firstname.lastname@example.org or by fax, (239) 642-0722 or
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