• Gregory Sandler

ALTERNATIVE DISPUTE RESOLUTION: SETTLING LAWSUITS WITHOUT GOING TO COURT

Updated: Sep 1, 2021


The vast majority of lawsuits are resolved through a settlement between the parties rather than by trial. This trend has been increasing over the years as the number of lawsuit filings steadily rise and court resources remain fixed.

In Virginia, to deal with the disparity between the demand for adjudication of lawsuits and the ability of the courts to process them, a different approach has been adopted. The state views the civil side of the court system (non-criminal), as an opportunity for disputing parties to resolve their grievances rather than “take them to court.”

It is true that citizens have the right to press a civil claim all the way to a court trial, and to have their case decided by a jury or a judge, but the judicial and legal communities are more and more aware that a trial is often not the most productive forum in which the competing positions can be raised. The main factors involved in the decision to try to resolve the claim in an alternative manner to taking the case to trial include:

  1. Trials are expensive.

  2. Trials often impose a substantial amount of anxiety on the people involved.

  3. The strict rules of evidence used in trial are not applicable in mediation or arbitration, and the parties are thus able to present exactly what they want in support of their claims.

  4. Submitting a case to a jury for decision takes control of the end result from the parties who have the most at stake. Alternative dispute resolution give the parties control over their outcome.

  5. Juries and judges only have an award of money at their disposal to resolve a dispute. The parties, however, may want to fashion their own remedy, making decisions about how much should be paid (if any), the timing of payments, having conduct affected or property returned, or any other method of satisfying the needs of the parties.

Virginia has a Division of Dispute Resolution Services within the state judiciary system. It provides resources to the various state courts, the legal community, and the population at large that helps them pursue the most efficient method of resolving disputes that arise between conflicting parties. The basic concept of Alternative Dispute Resolution is for the parties and/or their legal counsel to first engage in discussion about the issues of the dispute and whether any agreement might be mutually reached.

If agreement is not reached in this most informal approach, a mediator may be brought in to facilitate more formal discussion of issues and potential solutions. The mediator’s job is only to assist discussion; it is not to render an opinion.

If mediation does not bring a resolution, early neutral evaluation might be employed as the next logical step. This process engages an evaluator to consider the facts and applicable legal standards and render an opinion as to how the case might turn out at trial. At this point, the parties can begin to see more clearly the strengths and weaknesses of their positions.

A summary jury trial is yet another pre-trial ADR method that might be used. This, in effect, simply adds five more early neutral evaluators to constitute a mock jury. The parties make their presentations to the jury much as they would in court and have a “verdict” rendered that will give the parties another chance to see how their positions might fare.

Up to this point on the ADR continuum, the parties are not bound by the views of the outside parties evaluating the dispute. Further, their views are not admissible as evidence if the case does go to trial. But the next level of ADR involves an agreement of the parties to submit the case to an arbitrator whose determination will be binding. The arbitrator is a neutral party agreed to in advance by each party. If this approach is pursued, it means the arbitrator’s decision will end the case.

The final stop in the dispute resolution process is an actual court trial. This is the most formal step and, as noted above, it takes from the parties any ability to control the outcome of the case other than through their lawyers’ presentations of the facts and the applicable law. Beyond that, control is surrendered to the judge and the jury.

Personally, as an attorney who represents people in the types of cases where claims are always headed to trial, I am a big believer in resolving cases through alternative dispute methods. My job is to give my clients intelligent advice to allow them to make sound decisions about the outcomes of their cases. Submitting a claim to mediation is the most cost-effective and time efficient means of getting the client what they want, with a minimum of risk.

At The Sandler Law Group, we know the Virginia legal system inside and out. We are skilled at all aspects of litigation, including alternative dispute resolution. If you have been injured in an accident or by another person’s actions, Call toll free 800-9-THE-LAW or (757) 627-8900 to schedule an initial FREE consultation. You may also contact us online at www.sandlerlaw.net or by email at GSandler@Sandlerlaw.net.

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