On behalf of Sayer Regan & Thayer of Sayer Regan & Thayer, LLP posted on Monday, October 31, 2022.
Any lawyer worth his or her salt will usually encourage their client to attempt mediation before resorting to litigation. But sometimes circumstances arise where litigation becomes a better option than mediation, such as with a personal injury, breach of contract, or medical malpractice case.
First off, what do these two terms means? Litigation is the legal term for lawsuit, and it is the process whereby all involved parties attempt to reach a solution to the dispute through their respective lawyers.
You may assume that litigation involves taking someone to court, which is technically correct but the majority of litigation cases never see the inside of a courtroom. Both attorneys will first try to come to a settlement agreement before escalating to a formal courtroom trial.
The alternative to litigation is mediation, a form of alternative dispute resolution (ADR). This is when both parties attempt to settle a case without going to trial. A mediator is assigned to the case, and that neutral third party, along with the plaintiff, defendant, and both attorneys, will meet to discuss the parameters of the case to identify a solution.
It’s not the mediator’s job to pass judgment on the case, as a judge or jury would. The mediator listens to both sides, reads over documents, and facilitates a conversation regarding the best option that is agreeable to both parties. They do not make a legally-binding decision. Mediation is often seen in family law, such as during a divorce that involves children, as both parties generally don’t want to escalate the problem to a courtroom trial.
But sometimes, this doesn’t work, and litigation is the next best option.
Litigation: The Next Alternative
Certain cases lend themselves to the litigation process, such as:
• Disputes that have no middle ground for a compromise
• Parties who are staunchly committed to a different position despite the fact that compromise could be possible
• Parties who believe there is one right person and one wrong person
• Hostile situations involving parties who don’t care so much about winning or losing as they do about airing their grievances in public (their “day in court”)
As said above, mitigation (and its cousin arbitration) are usually attempted first to avoid a long and stressful legal battle. When all alternative dispute resolutions have been exhausted, litigation is the next logical step. However, it should be used carefully and sparingly, as it is expensive, time consuming, stressful and upsetting.
Litigation should only be used when there are no practical alternatives that would help both parties achieve their own objectives.
There are a few benefits of litigation over mediation:
• Full Discovery: Both parties are able to view documents and learn more about the opposition than they could through the mediation process.
• Ability to Appeal: Both parties have the right to appeal any decision by the judge in an effort to reach a better result next time.
• Witnesses: The attendance of witnesses to a jury trial can bolster either side’s case and win favor.
• Public record: Litigation is conducted through the courts, becoming part of the public record.
• Evidence: The rules regarding what can be submitted for evidence are stricter in the court setting. Those with a strong case may have a big advantage here, as there is less room for distractions such as speculation and conjecture. With mediation, the rules are unclear and the power lies mostly with the arbitrator, with much of the hard evidence not even coming into play like it would during litigation.
That all being said, just a small percentage of litigated cases go through a courtroom trial, with most being settled through negotiation, mediation, and arbitration first. Only an experienced lawyer can advise you on the best option for your unique circumstances.
Contact Sayer Regan & Thayer for Rhode Island Litigation
If you are facing a personal injury or any other type of case where you’re not sure if both parties could benefit from mediation or litigation, don’t hesitate to contact us for a free, no-obligation consultation. We can review your case and advise you on the next steps that lie in your best interests.
These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.