| |
WYLIELAW ON CONFLICTS,
LITIGATION
AND ALTERNATIVE DISPUTES RESOLUTION |
Contrary to what most people believe, the best way to win a lawsuit
is not to bring one at all. Effective conflict resolution and negotiation
can be the key to avoiding long expensive litigation. The attorneys
at WYLIELAW have experience in conflict resolution in many areas
of the law. WYLIELAW has successfully resolved many disputes by
understanding when to litigate and when to avoid litigation. We
have a proven track record with National Arbitration and Mediation,
American Arbitration Association, NASD and other agencies.
WHAT IS LITIGATION?
A controversy before a court or a "lawsuit" is commonly referred
to as "litigation". If the case were not settled by agreement between
the parties it would eventually be heard and decided by a judge
or jury in a court. Litigation is one way that people and companies
resolve disputes arising out of an infinite variety of factual circumstances.
The term "litigation" is used sometimes to distinguish lawsuits
from "alternate dispute resolution" methods such as "arbitration"
in which a private arbitrator would make the decision, or "mediation"
which is a type of structured meeting with the parties and an independent
third party who works to help them fashion an agreement among themselves.
WHAT IS ARBITRATION?
It is a process in which one or more arbitrators hear evidence from
the parties to a dispute and then issue an "Award" that dictates
who gets what. In some instances the arbitrator may also accompany
the award with an opinion explaining the reasoning that led to the
award. Many contracts may include a mandatory arbitration clause
that requires each party to submit any contract dispute to arbitration
and waive the right to file a lawsuit.
The arbitrator's award and opinion is not reviewable by a court;
each side waives their right to appeal in order to submit the dispute
to arbitration. Arbitration is a substitute for both the trial and
the appeal of the trial court's decision. If a party disagrees with
the arbitrator's decision, they can attempt to have a court vacate
the arbitrator's decision. In order to vacate an arbitrator's decision,
one must prove that the arbitrator's decision was arbitrary and
capricious, a very high legal burden. Rarely will a court overturn
or vacate an arbitrator's decision.
WHAT IS MEDIATION?
It is a process in which a neutral person facilitates communication
between disputants to assist them in reaching a mutually acceptable
agreement. The mediator is usually a lawyer or retired judge. The
parties generally share the expenses of hiring the mediator.
Mediators frequently ask each of the parties to prepare a written
statement in which they set out their version of the dispute. The
mediator reviews it and gives the parties a chance to tell their
story at the mediation. After learning about the dispute, the mediator
will push and cajole each party to adjust or settle the dispute
based upon the mediator's assessment of the merits of each claim.
Often times, the success of the mediation is directly related to
each side's reasonable view of the merits of their dispute and the
skill of the mediator in pointing out both the positive and negative
attributes of each side's claim.
A fair statement concerning mediation is that a successful mediation
occurs when the dispute is settled and each side walks away a little
unhappy.
HOW IS AN ARBITRATION MEDIATION OR A LAWSUIT
START?
The first step in most controversies is to inform the
other party that the controversy exists. Attorneys would refer to
this as presenting a claim. In the claim, the aggrieved party tells
the other party why s/he is responsible for the harm suffered. Some
claim letters threaten a lawsuit. Other claim letters set forth
the controversy, a proposed resolution, and an offer to submit the
controversy to an arbitrator or mediator.
If informal negotiation between the parties fails to yield a resolution,
the aggrieved party may request that the other parties participate
in either arbitration or mediation. Each party can then investigate
for him/herself whether arbitration or mediation will satisfy his/her
own objectives. If all parties agree, arbitration or mediation will
be conducted. The initial step in alternative dispute resolution
is the selection of the arbitrator or mediator. Many professionals
now offer their services as arbitrators or mediators and there are
companies (such as American Arbitration Association, JAMS End Dispute
and National Arbitration and Mediation) organized specifically to
assist people resolve controversies. Once the arbitrator or mediator
is selected, s/he tells all parties how the matter will proceed.
A lawsuit is started by filing a complaint in a court of law. Rules
of civil procedure, whether established by federal, state or local
law, and strict court formalities must be followed. Even in filing
the complaint, there are strict rules, such as selecting the right
court, exhaustion of all potential administrative remedies, and
even the type of paper used, the margins, the spacing of words on
the paper, and the size of type that must be used. An attorney will
assist you in adhering to the proper forms and rules.
WHAT IS A"CONTINGENCY FEE"?
In some types of cases attorneys are willing to handle matters on
a "contingency basis". In such a case you do not pay legal fees
unless and until you win, and then the lawyer receives a percentage
of your recovery as his or her fee. If you lose your case, there
would be no legal fee at all for the lawyer.
A contingency fee arrangement is a method that allows many individuals
who have been injured or seeking to recover damages, such as those
resulting from an auto accident or a medical malpractice case, to
obtain legal representation even if they do not have money to pay
a lawyer at the outset of a case.
As a general rule, accident and personal injury litigation is frequently
handled on a contingency basis, commercial disputes rarely are,
and in New York State, it is illegal and unethical for an attorney
to handle any criminal matter on a contingency basis.
WHEN SHOULD A LAWYER GET INVOLVED?
Depending on the seriousness of the matter, our advice is to get
a lawyer involved as early as possible, as frequently a lawyer can
help you achieve the results that you want. This is particularly
important in an accident case, as the other side's insurance company
has far more information than you do, and may take advantage of
you. We suggest that you look at the specific sections of the WYLIELAW
legal help site that deal with the type of accident or area of law
involved in your case.
Even in commercial disputes, getting a lawyer involved early can
help the parties keep perspective so that a simple matter does not
get blown up out of proportion. A good lawyer can keep you from
making concessions that would hurt your case if you can not amicably
settle, prevent critical evidence from getting "lost", witnesses
from changing their mind, and avoid conduct that can land you in
trouble, or expose you to dangers you had not considered.
|
