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Frequently Asked Questions
What happens at trial?
A trial is the ultimate event for the determination of all factual and legal issues in a case. A trial is usually scheduled 12 to 18 months after the case is initially filed. In the time between the filing of the case and the trial, the parties engage in various legal procedures called “discovery” to learn all of the facts and legal contentions of the other parties to the case. These include producing all documents relating to the case, answering written questions posed by the other parties and attending “in person” depositions, wherein the other parties are entitled to interview the other parties or independent witnesses so they may ask them questions which must be answered at that time, under oath. A deposition may last from a few hours to a few days. As your attorney, we prepare you for the process and sit next to you during the process to assure that it goes well.
What is Arbitration?
An arbitration is a method for resolving a case in which a neutral arbitrator hears the evidence and makes a decision as if he were the judge and jury at a trial. The rules of evidence may be somewhat relaxed at arbitration and the atmosphere is usually more informal than a trial. Arbitration can be either binding or nonbinding. In a binding arbitration, the arbitrator’s decision is final and neither party may dispute the result. In a nonbinding arbitration, either side may refuse to accept the arbitrator’s award and request that the court schedule the matter for a “trial de novo,” which means a new trial that will take place without regard for the underlying arbitration. In the trial de novo, no mention is ever made to the jury that the case was previously decided by an arbitrator. The advantages of an arbitration are the simplicity, relative economy and speed by which the parties may submit a dispute for hearing. The disadvantages are the fact that the arbitrator is not bound to follow the regular rules of evidence and the informal nature of the proceeding sometimes leaves the parties feeling that the case was determined by the arbitrator “on a whim,” without proper regard for the complexities of the law.
What is Mediation?
Mediation is a form of alternative dispute resolution. In mediation, both sides of a dispute agree to retain the services of a neutral mediator to assist in the process of negotiating a settlement of the dispute. The mediator is usually a retired judge or an attorney who has a good deal of experience in the area of law that applies to the case which is the subject of the mediation. When a mediation begins, the mediator will introduce himself or herself to both parties and their lawyers. Following the introduction and a brief explanation of the role of the mediator in the settlement process, the mediator typically separates the parties into different conference rooms. The mediator will then go back and forth between the two rooms and engage in separate discussions with both sides about the strengths and weaknesses of their positions in the litigation, their goals in the litigation, and the ramifications of different aspects of the litigation ( i.e. risks, costs, and delays that are part of litigation).
Through the process, mediators are attempting to cut through the obstacles to settlement and achieve an agreement for resolution of the case which both parties will accept. Often times, the resolution of the case which is achieved at mediation involves the use of some remedy which would not otherwise be available if the case went to trial. For example, in a real estate transaction, a seller may agree to buy back a property which he or she sold and agree to simply take a credit off the purchase price for the fair rental value for the period of time that the buyer lived in the property. These potential settlement terms cannot be awarded by a jury at trial. In that regard, many times a settlement can be more advantageous to both parties than the result after trial.