Arbitration, Mediation, Process of a Lawsuit

Arbitration and Mediation Law • Alternative Dispute Resolution ADR

The Law Office of

Mark A. Reed

Attorney at Law

Serving San Diego with Honesty, Integrity, and Affordability

858-277-0232

At The Law Office of Mark A. Reed, Esq., we take lawsuits very seriously. We represent both plaintiffs (those who are filing) and defendants (those who are filed against). As a family law, bankruptcy, and litigation law office, it has been our experience that most people who walk in our door don’t understand what lawsuits are really all about. Please read this quick overview before calling us to discuss filing a lawsuit. In many cases, arbitration, mediation, or alternative dispute resolution (ADR) is a better way to resolve a civil litigation matter.

ADR is the resolution of a legal dispute outside of court, usually either using mediation or arbitration. Mediation is a process by which parties agree to resolve a dispute with the assistance of a neutral mediator, who acts as an intermediary between the parties, suggesting compromise, aiding in negotiation, and facilitating communication. Arbitration is a process by which parties agree to have their dispute settled by a neutral third person, an arbitrator, outside of court. ADR, as opposed to a lawsuit in court, can have advantages such as cost effectiveness, lower stress, and time savings.

Attorney Mark A. Reed is a California attorney experienced in mediation and arbitration, as well as in litigation, who knows that sometimes common sense doesn’t always prevail, and that there is a place for the courtroom in the litigation process. We hope, however, that this brief overview of the process helps clarify some misconceptions people have about getting rich quick through the courts.

The following information about lawsuits shows why many civil litigation attorneys recommend arbitration or mediation as positive alternatives to lawsuits in resolving disputes:

COMMENCING AND/OR RESPONDING TO A LAWSUIT

A lawsuit is started by filing a complaint with the court. The complaint is a document which contains the allegations of alleged wrong doing and or what the person filing the complaint hopes to achieve. The person who initiates or files the complaint is called the "Plaintiff", and the person about who the allegations are against is called the "Defendant". If you are the defendant in a lawsuit you normally have up to thirty (30) days in which to respond to the complaint. This may be done by either admitting the allegations or by denying the allegations. If all the allegations are admitted then there is no lawsuit and the plaintiff will recover whatever he/she is suing for. If, however, the allegations of the complaint are denied then the lawsuit will proceed.

DISCOVERY

The next stage in a litigation matter usually is called "Discovery". The basic purpose of discovery is to enable the parties to obtain the evidence necessary to evaluate or resolve their dispute beforehand. Through effective discovery, the parties may determine that some claims are entirely without evidentiary support; or there is so much credible evidence as to others that they cannot reasonably be opposed. Thus, narrowing the issues to be tried and conserving court time and a trial. Also through discovery, each side can obtain better information regarding the opponent’s case, and thereby better evaluate the strengths and weaknesses of its own case. This increases the potential for pretrial settlement. Effective Discovery eliminates the need for guesswork as to the adversary's case. Each side can find out a great deal about the contentions and evidence the other side will offer. Thus, there is less chance of some "surprise" evidence or claim necessitating a continuance. There is also less chance for fabrication or forgetfulness by the witness who testify, because their trial testimony can be checked against the answers obtained through pretrial discovery. However, discovery has its disadvantages. There is always a risk of "educating" your opponents by focusing attention on evidence or issues of which they were unaware of. There is also the added cost to the lawsuit for discovery. Fees and costs relating to certain forms of discovery are often more than can be justified in routine litigation. Also, a failure to use discovery procedures efficiently may greatly increase their costs.

The most common types of discovery methods are:

1. Written Interrogatories: An interrogatory is a written question asked by one party to another party, who must answer under oath and in writing. The answer may be used in evidence against the answering party.

2. Request for Admissions: A Request for Admissions is a procedure whereby one party can force another party to admit or deny the truth of any relevant fact or the genuineness of any relevant document. These must be responded to under oath and in writing. The answer may be used in evidence against the answering party.

3. Inspection Demands: This is a demand for inspection of physical evidence including documents and records. It also allows for inspection of tangible things such as land in the possession, custody or control of the other party.

4. Request for Physical or Mental Examination: This allows for a medical examination of a person whose mental or physical condition or blood group is in controversy in the action. This normally will only be requested in a personal injury case or paternity.

5. Depositions: A deposition is testimony taken before trial, under oath, subject to cross-examination, and preserved in writing by a court reporter. Under certain circumstances, such testimony may be admissible at trial. The answers may also be used in evidence against the answering party.

COURT APPEARANCES

Eventually an appearance in court may be required by one or both of the parties and the attorneys. These required appearances may include, but are not limited to, the following:

1. Case Management Conferences: This is where the judge will set deadlines for discovery, expert witness designation, schedule a settlement conference and set a trial date;

2. Settlement Conferences: A settlement conference may be either mandatory or voluntary. Usually a judge will preside over the settlement conference. He will then make various attempts to have the parties reach a mutually satisfying agreement; and,

3. Trial Readiness Conferences: Normally a trial readiness conference will be held approximately fifteen (15) to thirty (30) days before trial. At the trial readiness conference, each party will file a joint trial statement. Normally this report is done jointly. Each party in this statement must list all witnesses, exhibits, give a brief non-argumentative description of the case and state what legal issues are not in dispute and which legal issues are in dispute. If the case is to be tried in front of a jury, then the parties shall also include copies of proposed jury instructions.

The case is then ready to proceed to trial. A trial may be heard either by a jury or a judge.

TIME FACTORS

Time factors in each case vary greatly. In a simple case, it takes a few days to prepare the papers and file them. They are then served upon the other party who has thirty (30) days to respond. If the party does not respond, then the matter is a default, at which time the party seeking the default may file for a default judgment. Should the defendant respond to the Complaint, it generally will take approximately one (1) year or more before the case actually goes to trial. Of course, the case may be settled at any time before trial. These minimal time estimates are not applicable to complex matters.

CONCLUSION

The foregoing statement is a very general guide and not exhaustive. Each case is different and has different factors and circumstances which call for and receive my individual attention as your attorney. A separate analysis of individual problems is made and they are handled accordingly. Complex cases take much more time and work. With your cooperation, we shall try to bring the matter to a reasonable and prompt resolution so that you can go about the business of living.

As you can see, there is a significant risk involved on the attorney’s part when deciding to accept your case for a civil lawsuit. Alternative Dispute Resolution and mediation allows both sides to come to the table and agree on a negotiated settlement without the outlay of significant money and resources over a lengthy process.

If you are considering filing a civil lawsuit for breach of contract, or if you have been named as a defendant, contact the California mediation lawyer Mark A. Reed.