Authoritative sources uniformly agree that well over ninety percent of civil cases either are dismissed or are consensually resolved before trial. The question, therefore, is not so much whether a case will settle, but when. The more protracted the litigation, the more expensive it will be. Oftentimes, parties and their lawyers choose to mediate their disputes, either before or after the commencement of litigation.
Mediation, for the uninitiated, is a process in which the disputants and their attorneys meet with a mediator to negotiate a resolution of their dispute. The parties themselves decide the scope of information they will exchange prior to the mediation, the nature of the presentations to be made to the mediator, the date, time and place of the mediation, and the terms of the resolution. Studies and anecdotal evidence consistently confirm that mediation is a powerful and effective tool for the resolution of business disputes.
Arbitration is more akin to litigation in that the parties submit their dispute for resolution, although to a privately selected arbitrator instead of a publicly appointed or elected judge. Because arbitration is a “creature of contract,” the parties can agree to an arbitrator who has expertise regarding the dispute at issue, and can tailor a process to more directly and expeditiously reach the heart of a business dispute.