Litigation v Arbitration

Litigation and arbitration are very different processes. If you are involved in a legal dispute, it is important to understand both. While people begin by believing that they must litigate their issues in court, clients will often choose arbitration, once it is explained to them, for a number of reasons.

The Differences

In court, a judge, who is selected randomly, who doesn’t necessarily have any special expertise in the issue at hand, and who doesn’t know the parties or share their values, controls the process. Then he (or she), or a jury of “your peers,” of whom the same is true, makes the decisions. Meanwhile, arbitration is conducted with a panel of arbitrators, who are often chosen by the parties because they have special experience with or expertise in the industry that is the subject matter of the dispute. The arbitrators take on a role similar to that of a judge and/or jury, making decisions about evidence and giving written opinions.

Their decision can be either binding or non-binding.

In litigation, the atmosphere is positional, adversarial, and hostile. In arbitration, the atmosphere is a generally less formal.

The level of conflict in litigation is hostile, adversarial, and disrespectful. The manner in which the litigation discovery process is handled discourages candor and transparency. In arbitration, on the other hand, the parties are often encouraged to freely and confidentially present their positions in front of a neutral third party, the arbitrator(s).

In litigation, costs are unpredictable and often escalate rapidly. Even after a judgement has been rendered, post-judgment litigation is common and costly. Adversarial expert battles are financially inefficient. Further, the judge mandates the timetable, and crowded court dockets regularly cause delays. But because arbitration is a more streamlined approach, the time spent and cost of arbitration is usually far less than litigation.

In litigation, separate experts retained by the opposing parties support their clients’ positions (at twice the expense). And non-transparency requires the experts to work harder, not just developing and defending their own opinions, but also preparing the attack on the opposing expert’s position. In arbitration, because the process is streamlined, experts usually have less work to do and less time to do it, and the cost is therefore less, as well.

In litigation, lawyers fight to win, but someone always loses, often both, in a court-imposed “lose-lose” judgment. It is similar in arbitration, except that, if the arbitration decision is non-binding, it informs and allows the lawyers to more effectively present alternative resolutions to the clients.

Litigation is public and subject to media attention. Arbitration proceedings are typically not part of the public record.

In litigation, lawyers profit (i.e. make more money) if the parties do not agree and continue to litigate. In arbitration, lawyers make less if you arbitrate successfully because the massive amount of work required to prepare for and conduct a full-blown trial is eliminated.

Finally, litigation is mandatory if the parties cannot agree to use another process to reach an agreement. Arbitration, on the other hand, is often a voluntary process, although many people unknowingly agree to arbitrate when they sign certain contracts.

As you can see, there may be benefits to choosing arbitration over litigation to resolve your dispute.

If you need help negotiating your way through litigation with grace and with respect, we can help. To see if our services might be right for you, visit us at Open Palm Law or email me at Joryn@OpenPalmLaw.com. We are here for you, and for your family, during the stress of whatever change your family is going through!

Learn more about collaborative divorce. Follow Open Palm Law.

Need advice now? Contact Joryn!

About this week’s author, Joryn Jenkins.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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