By Thomas F. Gonzalez
Somehow, you have found your way to the Beggs & Lane law firm blog. I will assume you clicked on this link purposefully and did not simply find your way here accidentally because you were looking for a good deal on a purse (www.bagslane.co.uk) or you are trying to hone your Irish dance skills (www.beglanacademy.com). Assuming you are here on the Beggs & Lane blog purposefully, you must be looking for some useful tidbit of legal knowledge.
As a trial lawyer, I often meet with individuals who have never been exposed to the legal process. My clients may be individuals, professionals or business persons who seek advice regarding a dispute that has arisen in their personal or professional lives. Sometimes my clients have been served with a lawsuit or are themselves contemplating bringing legal action against another. In those situations, some basic information can be helpful to your understanding of the legal arena you are entering.
In your initial conversation with your attorney, you will hear many vaguely familiar terms but you may not know how those terms apply to your case. Three terms that come up often in the civil litigation practice are arbitration, litigation and mediation. These are three different mechanisms for resolving disputed claims. In arbitration and litigation some other party, an arbitrator, a judge or a jury, will listen to the presentation of evidence and apply the law to reach a binding decision. While mediation also involves another person, that person, the mediator, does not decide the case. Rather, the mediator acts as a settlement facilitator and it is up to the parties themselves to decide whether they will settle their claim.
Arbitration is not a trial or a court proceeding. Arbitration is generally available only to those parties who have specifically chosen to be governed by an arbitration provision in a contract or who have participated in conduct regulated by a law or statute which provides for arbitration. Unfortunately, there can be situations where a party did not know that they had agreed to arbitration. Such situations often arise in disputes involving banks, insurance companies and other similar consumer situations.
Arbitration most often comes up in cases of contract disputes between parties if, in that underlying contract, the parties had agreed to arbitrate future disputes with each other. Alternatively, you may find yourself involved in a dispute concerning an area of law where the government has set forth a mechanism making arbitration available to the parties. For example, in Florida’s medical malpractice statute either party may request arbitration under the statute and either party may deny that request.
Arbitration involves some other person, an arbitrator, or entity, an arbitration panel, making decisions regarding the merits of your case and any damages that may flow from that case. Typically, arbitration is conducted under a set of known rules and the parties present their case to one or more arbitrators. It is common that each party will name their chosen arbitrator and then those two arbitrators will choose a third arbitrator to govern the proceedings. The case will then be presented to that arbitration panel rather than to a judge and jury as is done in litigation. Usually, the arbitrators’ decision is final and enforceable. But a contract or statute may provide for nonbinding arbitration.
Litigation of a dispute is much more common than arbitration. Litigation is the classic lawsuit we are all familiar with from the daily news, literature, movies and even television. In litigation, each party retains their own attorney who prepares their case for trial. Litigation involves several stages before a case can be presented to a judge or jury. The parties will formulate their initial pleadings, usually a Complaint and an Answer. The parties will then engage in discovery where they ask each other written questions and answer those questions in writing. The parties will exchange pertinent documents and subpoena documents from relevant non-parties. Depositions, oral question and answer sessions taken under oath, are used to develop the facts of the case prior to presentation before a judge or jury. Once all the pretrial work has been done, the case is set for trial. The majority of cases are set for a jury trial. In Florida civil cases, six jurors form a panel to decide the case. The trial is governed by a trial judge who instructs the jury on the law of the case and guides the jury in reaching its decision and assigning a verdict.
Mediation is a process that has grown in popularity over the last several decades and can be used in cases involving both arbitration and litigation. While mediation is similar to arbitration and litigation in that it involves a neutral person, someone not involved in the lawsuit; the mediator is present only to facilitate settlement discussions and has no authority whatsoever to make a decision regarding the case.
In mediation, the parties present their case facts briefly to a mediator who then discusses the potential pros and cons of the case and proposes potential settlement scenarios. Much of the mediator’s job involves meeting separately with each party and conveying the Plaintiff’s demands and the Defendant’s offers.
The mediator cannot force a party to settle a claim and cannot even provide legal advice regarding the claim. All of the issues discussed in mediation are confidential and cannot be used in an eventual trial or arbitration. This is important because virtually every case must be mediated prior to commencement of a final arbitration or trial phase. Mediation has been very successful in reducing the congestion of our trial courts. In fact, the vast majority of claims filed in Florida are resolved at mediation before trial.
Beggs & Lane attorneys assist clients in arbitration and litigation matters. We have also assisted our clients in mediation, both representing the parties and as the mediator. While we certainly don’t wish for any person to find themselves embroiled in a legal dispute we recognize it happens and as attorneys it is our hope to recommend the best course of action for your case. These basic facts will help you better understand the process when you first meet with an attorney.