Alternative Dispute Resolution (ADR)
Because of the backlog of cases pending in the state Superior Court judges and lawyers have explored alternatives to the traditional jury or court trial as a means to resolve civil disputes. All of these remedies require that every party to the controversy consent to their use.
Typically, when the lawyers have refined the dispute in the legal pleadings a claim is filed for inclusion on the court’s trial list, called a Certificate of Closed Pleadings. Most Judicial Districts will schedule a pre-trial or status conference. Often the lawyers will be required to cooperate in completing a scheduling order identifying time limits for discovery, depositions, disclosure of expert witnesses and eventually a proposed trial date. At the conference the judge also explores whether the case is ready for meaningful settlement discussions. Generally the parties require the completion of discovery and depositions before settlement talks can occur. There are instances however, where the cost of pursuing formal discovery mandates that the parties explore resolution before incurring costly discovery expense. Here are some of the means we utilize to explore possible resolution of a case without a jury trial:
Non Binding Mediation. This is the most popular settlement vehicle. The parties select an experienced mediator, either a sitting or retired judge or an attorney with significant mediation experience. There are also Alternative Dispute Resolution Organizations that provide mediation services. Mediation allows a time out in the litigation where the parties can freely exchange information and participate in settlement discussions that will not be binding on either side unless settlement is reached. A trained mediator will evaluate the settlement positions of each side and help to find a common ground to resolve the claim. If it is not successful the litigation continues and the information exchanged in mediation, together with the recommendations of the mediator does not come in to evidence in the eventual trial. The vast majority of cases submitted to mediation settle.
Binding Arbitration. Rather than the traditional jury trial the parties can agree to conduct the trial before a single arbitrator or a panel of three arbitrators. The American Arbitration Association provides a panel of experienced arbitrators or the parties can select a mutually agreeable arbitrator. Arbitration is an expedited means of conducting a trial. It can be scheduled at the convenience of the parties without the need to wait for a case to find its place on the court’s trial list. There are various parameters to arbitration. In most instances the parties enter into a high-low agreement. The “high” is an agreed upon cap on the award and the “low” is an agreed upon threshold. The arbitrator is not informed of these numbers. If the award exceeds the “high” then the plaintiff accepts what the “high” number is. If the award is lower than the “low” the insurance carrier pays the “low” and the case is withdrawn.
Last Best Offer Binding Arbitration is a novel concept. Each side submits a position statement and last best settlement position. The Mediator/Arbitrator selects one or the other number as the binding award. This approach forces parties to thoroughly evaluate their case to move closer to a central number,
Cases are tried before experienced fact finders can be compacted and often the parties stipulate to most of the exhibits, providing a savings in cost and time for all litigants. Arbitration brings finality as well as an earlier resolution of the case. Arbitration awards can only be appealed in very limited situations and the overwhelming majority is final on the issuance of the award.
Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT. For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.
