In today’s legal landscape, most civil cases filed in court do not go to trial. Instead, they are either settled or dismissed.
The main factors contributing to the decline in trials are the growth of Alternative Dispute Resolution (ADR) and the impact of discovery on settlement. ADR encompasses various mechanisms to resolve disputes outside traditional litigation, such as arbitration, mediation, and negotiation.
The Intersection of Civil Lawsuit and ADR
In many states, including Texas, courts routinely refer cases filed in civil courts to some form of ADR. Sometimes, local rules automatically require parties to submit to mediation.
Contracts may also contain provisions requiring arbitration or mediation before filing a lawsuit. Negotiations between parties can also occur in the context of pending or prospective court cases. Thus, civil litigation practitioners must be well-versed in various dispute resolution processes inside and outside the courtroom.
Types of Alternative Dispute Resolution
ADR encompasses various methods to resolve disputes. Here are some of its types:
1.Arbitration
Arbitration is often agreed upon through contract. This system operates similarly to a privatized court, where the parties engage a private “judge” (the arbitrator) to resolve their dispute. The arbitrator evaluates the evidence, including witness testimony and legal arguments, before issuing a decision. Arbitration results are enforceable in court, with limited scope for judicial review. The benefits of arbitration include cost efficiency and speed compared to a traditional jury trial.
2.Mediation
Mediation is a confidential and informal process where a neutral third party assists in facilitating a negotiated solution. Unlike arbitration, mediators do not impose a solution but rather guide parties toward resolving their dispute without court intervention. Mediators help parties navigate toward realistic and mutually agreeable solutions.
3.Negotiation
Since most cases settle before trial, litigators must have strong negotiation skills. It requires persistence, the ability to prioritize client interests, and an understanding of effective negotiation tactics. Although negotiation skills are applicable in mediation, the absence of a facilitator changes the dynamic.
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