ADR CORNER
Alternative Dispute Resolution: Why it's Better
than the Alternative of Trial
NICK MARZUK
As a law student, I was under the impression
that mediation and arbitration were either
uncommon or part of a small niche of the
law – something I would rarely use, if ever.
Then as a practitioner and trial lawyer, the
value of these practices became clearer to
me. Now, as a mediator, I see how great they
are for everyone involved.
Use Them Early and Often
Parties to a dispute/lawsuit will spend
thousands of dollars on experts, exhibits,
and attorneys’ fees to find out what their
case is about and posture their position. A
lot of those expenses are building the case
for trial. Yes, due diligence is important,
and using mediation or arbitration without
knowing anything about one’s case is not
a good idea for anyone, but spending a
fraction of that money early on can provide
many advantages to both sides, or even
bring finality to the case.
More and more contracts are adding
pre-suit requirements of mediation
or arbitration, making litigation the
alternative. Benefits of early mediation
or non-binding arbitration include (1)
seeing what the opposing side’s theory of
the case is, (2) knowing how the opposing
side values the case, and (3) for arbitration,
seeing how a deciding body would rule on
the dispute. If the case does not resolve,
these pieces of information are very
helpful for both sides moving forward and
will likely save both parties in costs/fees
in the long run. Lastly, an “unsuccessful”
mediation or non-binding arbitration often
leads to a subsequent resolution due to
what transpired in those attempts.
What’s the downside of an early attempt
at dispute resolution? At mediation, as
well as many arbitrations, everything is
confidential. The cost is small compared
to other litigation costs. Lastly, putting
the outcome of the dispute into the hands
of the parties makes the result something
both parties can agree to, unlike a verdict.
Most cases resolve pre-suit, and most
lawsuits resolve before a verdict. Sure,
there are some cases that are destined to go
to trial, but even those cases are mandated
to mediate before trial (if litigating here in
Florida). Using dispute resolution early and
often can streamline litigation, ultimately
result in an early resolution, and be in the
best economic interest of both parties.
Uncertainty of Trial
An honest trial lawyer will tell you they’ve
won cases they should have lost, and they’ve
lost cases they should have won. Our
judicial system is designed to optimize the
chances of the fairest decisions/outcomes.
With our system though, verdicts usually
result in clear cut winners and losers. Trials
should be the last resort – and they are in
Florida – but mediation is too often seen
by litigants as a required impasse needed
before trial.
When someone is wronged and wants
“their day in court,” they’re usually leaving
the outcome of something very significant
in their lives up to a jury. Six strangers,
all summoned to jury duty simply because
they have a driver’s license, decide cases
worth all different amounts of money. One
wouldn’t let six strangers choose the next
type of car to buy or where to send a child
to college. So why would someone want
those strangers to decide something so
important as a lawsuit? Something that to
some is the most consequential decision in
their entire life? And then the chance of an
appeal? No thank you.
As mentioned, some cases just can’t
resolve, and that’s what trials are for. But
the uncertainty of trial is such that the
parties should be encouraged to try all they
can and resolve the dispute while they still
have control over the outcome.
Convenience in a Post-COVID19 world
As courts, particularly trials, were on hold
for months and months this year due to the
global pandemic, the wait to get to trial will
grow for each case heading that way. With
both sides knowing that their case may be
tried a year later than they expected due to
the global and judicial landscape, finality is
something to consider so the parties can
move on past their dispute.
With virtual platforms allowing parties and
their lawyers to attend mediations from
anywhere in the world, spending a couple
hours from the comfort of your home is
extremely convenient. The convenience
of resolving your case through a virtual
mediation rather than in trial, for days
and days, is worth, to many, money and
peace of mind – that can allow parties to
be more giving in their negotiations, which
could result in a successful agreement at
mediation.
Ultimately, trials will still exist, and they
should. Forms of Alternative Dispute
Resolution (although the term Dispute
Resolution is starting to replace the outdated
term) however should be considered more
often by litigants than they currently are;
getting a resolution that all parties can agree
to is something worth considering when
weighing the pros and cons of trial
Nick Marzuk is an attorney at The Schiller
Kessler Group as well as the founder
of Marzuk Mediation. He focuses on
PIP litigation and personal injury. Nick
lives locally with his wife and kids, and
his favorite hobby is cooking. For more
information, visit www.MarzukMediation.com.
PBCBA BAR BULLETIN 5