Many alternatives to expensive and lengthy litigation exist. If used correctly, such Alternative Dispute Resolution (ADR) mechanisms can end costly lawsuits early on, resolve complex disputes, and sometimes even produce win-win solutions. Indeed, the vast majority of all lawsuits are settled out of court, many of them on the courthouse steps after months or years of preparation and expense.
Some ADR mechanisms work better than others in any given case. The most common forms of ADR are arbitration, mediation, summary jury trial, and minitrial, although these forms can be combined to form hybrids that may be useful in a particular dispute.
Arbitration is adversarial in nature and produces a binding decision made by a third party. It is the form of ADR that most resembles litigation. Often, the parties have a clause in a contract between that that commits them to arbitration. The parties to the dispute choose either a single arbitrator or a panel of arbitrators (usually three), who then hear evidence and arguments from attorneys and render a legally binding decision. In general, arbitration is much less formal than litigation and requires much less time and money.
Arbitration awards usually represent the final resolution of a dispute. There is typically no right to appeal. Such awards can only be vacated by courts on exceedingly narrow grounds. This finality may have particular relevance in patent disputes where the parties have a long-term commercial relationship where early certainty is valuable. However, some ADR-provider procedures include appellate panels that the parties can use.
Mediation differs greatly from arbitration in that the neutral third party, the mediator, does not impose a solution. The object of mediation is to help the parties resolve their own dispute, so a mediator’s functions can vary depending on the personalities and wishes of the parties and their attorneys, the nature and history of the dispute, and the personality and skills of the mediator.
In the course of an actual mediation, a good mediator might urge participants to talk to each other; help them to understand the nature and objectives of mediation; carry messages; help the parties agree on an agenda, or, failing that, set an agenda; provide a suitable environment for negotiation; maintain order; help disputants understand their problems and the source of their conflict; defuse unrealistic expectations; help participants develop their own proposals; help them negotiate; suggest solutions; or persuade them to accept a specific resolution.
Summary Jury Trial
In a summary jury trial, opposing lawyers select a small jury, usually six members, from the regular jury pool. The judge gives the jury preliminary instructions on the law, the lawyers make short opening statements, then each side has a limited time, typically an hour, to summarize the evidence it would otherwise present at a trial. Following brief rebuttals, the lawyers present closing arguments in which they interpret and characterize the evidence they have previously described. The judge charges the jury, gives it final instructions on the law, and the jury retires to reach its verdict.
A minitrial is a hybrid of mediation, traditional settlement negotiation, and adjudication. It typically is a completely voluntary procedure normally initiated by the parties themselves. Minitrial formats vary somewhat but typically involve one high-level executive from each side of the dispute plus one neutral adviser, sometimes a former judge but often a nonjudicial expert in the subject matter of the contest. Before the minitrial, the parties informally exchange key documents, exhibits, short briefs, and summaries of witnesses’ testimony. They also reach agreement on format, timing, and procedures, and they may even engage in very abbreviated discovery and take short depositions from some of the key witnesses. The whole process usually takes from one to four days.
Often, settlement negotiations and alternative dispute resolution (ADR) proceedings are the first or best opportunity for the weaknesses of the opposing party’s case to be presented to the opposing party directly. At BHW, we help our clients achieve beneficial settlements by effectively communicating the strengths of our client’s case during negotiations and ADR, while ensuring that the opposing party recognizes and understands the weaknesses in its case.