Trials and Trials and Resolving Resolving DisputesDisputes

Chapter IssuesChapter Issues

• Basic Trial Procedures Basic Trial Procedures • Procedures and Processes of Litigating a Procedures and Processes of Litigating a

DisputeDispute• Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR)– ArbitrationArbitration– Negotiation-SettlementNegotiation-Settlement– MediationMediation– Other forms of ADROther forms of ADR

The Judicial SystemThe Judicial System• The court system is The court system is

adversarial in natureadversarial in nature• Parties have the responsibility Parties have the responsibility

for bringing a lawsuit, shaping for bringing a lawsuit, shaping issues and presenting issues and presenting evidenceevidence

• Lawyers represent the parties’ Lawyers represent the parties’ claimsclaims

• Judges don’t investigateJudges don’t investigate• Court applies legal rules to Court applies legal rules to

facts presentedfacts presented• Trials are often costly and Trials are often costly and

uncertainuncertain• Complex facts, extensive Complex facts, extensive

evidence, mountains of evidence, mountains of business records involvedbusiness records involved

• Juries tend to be less Juries tend to be less sympathetic to businessessympathetic to businesses

Basic Trial Procedures

• Pleading Stage

• Discovery Stage

• Pretrial Stage

• Trial Stage

• Appellate Stage

• Enforcement Stage

The Arbitration ProcessThe Arbitration Process

• Decided at time of making the contract Decided at time of making the contract oror after dispute arises after dispute arises• Begins when party files a Begins when party files a submissionsubmission • Parties agree on Parties agree on arbitrator(s)arbitrator(s)• The The hearing procedurehearing procedure

– Closed doorClosed door– Less restrictive procedural and evidentiary rules than a Less restrictive procedural and evidentiary rules than a

trial courttrial court– Arbitration associations have rules that guide Arbitration associations have rules that guide

participants/arbitratorsparticipants/arbitrators• Good faith cooperationGood faith cooperation• Voluntary and prompt exchange of documentsVoluntary and prompt exchange of documents• Uncooperative parties may be required to pay fees and Uncooperative parties may be required to pay fees and

compensation by arbitratorcompensation by arbitrator

The Arbitration Process . . .The Arbitration Process . . .

• The The award award (decision)(decision)– Usually given in writing within 30 days of close of Usually given in writing within 30 days of close of

arbitration hearing arbitration hearing – Arbitrators have broad powers to decide remediesArbitrators have broad powers to decide remedies

• Appealing Appealing the awardthe award– Attacks on arbitrators are rarely successfulAttacks on arbitrators are rarely successful– Errors of fact or law are not reviewableErrors of fact or law are not reviewable– Grounds for overturning appeal: fraud, partiality, Grounds for overturning appeal: fraud, partiality,

serious procedural misconduct, excessive use of serious procedural misconduct, excessive use of power by arbitratorpower by arbitrator

– Arbitrators have wide latitude in awardsArbitrators have wide latitude in awards• Generally arbitration award is Generally arbitration award is finalfinal

NegotiationNegotiation

• Least formal form of ADRLeast formal form of ADR• Parties decide to settle matter Parties decide to settle matter

between themselvesbetween themselves• Often use lawyers or Often use lawyers or

representatives, though not representatives, though not requiredrequired– Lawyers, etc. are Lawyers, etc. are agentsagents of of

the parties of the disputethe parties of the dispute• Negotiated settlement is Negotiated settlement is

usually a contract, which usually a contract, which is is enforceable, like other enforceable, like other contractscontracts, by the courts, by the courts

MediationMediation

• 3rd neutral person (3rd neutral person (mediatormediator) ) assists the parties of the assists the parties of the disputedispute

• Parties mutually decide on a Parties mutually decide on a resolution resolution

• Mediator makes Mediator makes suggestionssuggestions• Mediator’s suggestions are Mediator’s suggestions are

NOT BINDINGNOT BINDING on the parties on the parties• Parties may go to trial after Parties may go to trial after

this ADRthis ADR• Mediation often helps to Mediation often helps to

maintain the relationship maintain the relationship between the partiesbetween the parties