Jurisdictional Menas of Resolving Conflicts

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ARBITRATION

Definition: Arbitration is the submission of a disputed matter to an impartial


person (the arbitrator) for decision.

The Process: Arbitration is typically an out-of-court method for resolving a


dispute. The arbitrator controls the process, listens to both sides and makes a
decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are
limited.

In a more formal setting, the arbitrator will conduct a hearing where all parties
present evidence through documents, exhibits and testimony. The parties may
agree to, in some instances, establish their own procedure, or an administrating
organization may provide procedures. There can be either one arbitrator or a
panel of three arbitrators. An arbitration hearing is usually held in offices or
other meeting rooms.

The result can be binding if all parties have previously agreed to be bound by the
decision. In that case, the right to appeal the arbitrator’s decision is very limited.
An arbitrator’s award can be reduced to judgment in a court and thus be
enforceable. In nonbinding arbitration, a decision may become final if all parties
agree to accept it, or it may serve to help you evaluate the case and be a
starting point for settlement talks.

How and When Arbitration is Used: A common use of arbitration is in the area of
labor disputes – between firefighters and the city in wage disputes, for example.
You will usually be represented by an attorney in arbitration.

Many contracts have clauses that require that disputes arising out of that
contract be arbitrated. You may have seen such a provision when you applied for
a credit card or opened a retirement account or other account with a
stockbroker. You may want to explore using this process if you and the other
side agree that the problem needs to have someone make a decision, but you do
not want the expense of going through the court process. If you agree to
arbitrate or sign a contract with an arbitration clause, you should understand the
arbitrator may make the final decision, and you may be waiving your right to a
trial in court.

Who Provides This Service: Many attorneys, other professionals or professional


associations offer their services as arbitrators. Typically, your attorney will
select the arbitrator based on the particular type of dispute. In complex and
highly technical cases, often an arbitrator who is knowledgeable in that field is
chosen. Usually, fees are charged.

Some courts offer court-sponsored, nonbinding arbitration and have specific


procedural rules to follow.

Characteristics of Arbitration:

 Can be used voluntarily


 Private (unless the limited court appeal is made)
 May be less formal and structured than going to court, depending on
applicable arbitration rules
 Usually quicker and less expensive than going to court, depending on
applicable arbitration rules
 Each party will have the opportunity to present evidence and make
arguments
 May have a right to choose an arbitrator with specialized expertise
 A decision will be made by the arbitrator that may resolve the dispute and
be final
 Arbitrator’s award can be enforced in a court
 If nonbinding, you still have the right to a trial
 Arbitration is not typically permitted for family law matters

LITIGATION (GOING TO COURT)

Definition: Litigation is the use of the courts and civil justice system to resolve
legal controversies. Litigation can be used to compel the opposing party to
participate in the solution.

The Process: Litigation is begun by filing a lawsuit in a court. Specific rules of


procedure, discovery and presentation of evidence must be followed. The
attorney for the other side will want to take your deposition to learn more about
the facts as you see them and your position in the case. There can be a number
of court appearances by you and/or your lawyer. If the parties cannot agree on
how to settle the case, either the judge or a jury will decide the dispute for you
through a trial.

A trial is a formal judicial proceeding allowing full examination and


determination of all the issues between the parties, with each side presenting its
case to either a jury or a judge. The decision is made by applying the facts of the
case to the applicable law. That verdict or decision can conclude the litigation
process and be enforceable; however, if appropriate, the loser can appeal the
decision to a higher court. In some cases, the losing party may have to pay the
costs of the lawsuit and the other party’s attorney fees.

How and When Litigation is Used: Our American civil justice system is one of
the best in the world. Our Constitution gives us the right to a fair trial. If you
want your day in court with a judge or jury of your peers deciding the outcome,
the pursuit of litigation and trial of the case is for you.

You may be in a municipal court, state district court or federal court depending
on the type of dispute you have and where your attorney files your case or where
you get sued. State court trial judges are elected on a nonpartisan ballot, though
vacancies are filled through an appointment process from highly qualified
applicants. The district courts also appoint special judges who handle certain
kinds of cases, such as small claims and divorces. These judges are selected by
the district judges from qualified applicants. Federal district judges are
nominated by the president and confirmed by the U.S. Senate. Federal
magistrates are selected by the federal district judges. In all courts, cases are
randomly assigned to the various judges. You have no choice concerning which
judge will hear your case. Juries are randomly selected from a jury wheel of
licensed drivers within each state judicial district and, in the case of federal
court juries, from a jury wheel of registered voters and drivers license holders.

If you cannot settle your differences through negotiation, mediation, arbitration


or some other means, you can pursue litigation through the courts with your
lawyer.

Characteristics of Litigation:

 Involuntary – a defendant must participate (no choice)


 Formal and structured rules of evidence and procedure
 Each party has the opportunity to present its evidence and argument and
cross-examine the other side – there are procedural safeguards
 Public – court proceedings and records are open
 The decision is based on the law
 The decision is final and binding
 Right of appeal exists
 Losing party may pay costs

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