The chart below compares the dispute resolution options available to you. Comprehensive Adjudication is your best option for nearly every issue you will face in resolving your legal dispute.
Issue: Start of Trial
Comprehensive Adjudication: Your adjudication trial commences immediately. Adjudicator identifies the relevant evidence, examines witnesses and decides the dispute.
Public Court Litigation: Trial starts 2 – 5 yrs. after complaint is filed.
Arbitration: Arbitration starts 2 – 12 mos. after demand is filed, but it can be delayed for long periods by disputes over arbitrability and discovery.
Mediation: No trial. All parties must compromise or mediation fails.
Issue: Cost of Obtaining a Just Result
Comprehensive Adjudication: The parties split the cost of retaining an Adjudicator instead of hiring separate counsel to perform duplicative work. The Adjudicator focuses only on the merits of the dispute. Comprehensive Adjudication provides a higher quality resolution at half the cost of public court litigation.
Public Court Litigation: Public court litigation is the most inefficient and costly option. The parties retain hired adversaries who waste substantial resources on strategic maneuvering, useless side disputes and duplicative work. Monthly cost fluctuates dramatically.
Arbitration: Arbitration is more expensive than Adjudication but is less costly than public court litigation if the parties are willing to forfeit full discovery rights and important safeguards. The parties must pay the Arbitrators in addition to their own legal counsel. Legal error by the arbitrator cannot be appealed.
Mediation: A just result is not possible. Mediation will fail unless all parties make substantial compromises to settle the case, including the party who deserves to win.
Issue: Risk of an Unjust Result
Comprehensive Adjudication: Adjudication provides the best option for those seeking true justice. The parties are able to jointly select an Adjudicator based upon his or her legal expertise and reputation for fairness, honesty, impartiality, and diligence. The parties may also agree to an expedited appeal process.
Public Court Litigation: The parties must live with the judge that is assigned to them and overcome the biases and untested legal skills of a lay jury.
Arbitration: The parties can select their arbitrators but often must give up their rights to full fact discovery, important legal safeguards and most rights of appeal. Legal error by the arbitrator generally cannot be appealed.
Mediation: A just result is not possible. Mediation will fail unless all parties make substantial compromises to settle the case, including the party who deserves to win.
Issue: Cost of Reviewing Documents Prior to Production in Discovery
Comprehensive Adjudication: Production of documents to the Adjudicator is limited to relevant evidence. The legal costs associated with filtering out privileged material before producing documents is eliminated because the Adjudicator does not consider privileged communications.
Public Court Litigation: Parties incur huge cost and delay so their attorneys can filter out irrelevant or privileged documents before production to opposing parties.
Arbitration: Document discovery is non-existent or very limited. Parties often cannot obtain needed evidence. Any limited document production suffers from the same problems experienced when utilizing the litigation option.
Mediation: No discovery process in mediation. The parties often incur the full cost of discovery before mediation can proceed.
Issue: Depositions
Comprehensive Adjudication: The Adjudicator’s examinations of witnesses under oath serve as both discovery depositions and trial testimony at the same time. Questions are focused on the issues. No need for parties to prepare witnesses in advance of testimony.
Public Court Litigation: Litigation depositions are far too lengthy and unfocused. Fearing abusive tactics, the parties often incur the substantial expense required for their attorneys to “prepare” their witnesses for deposition and the testimony must be repeated again at trial.
Arbitration: Depositions often are not permitted or are very limited. Parties often cannot obtain needed discovery of evidence.
Mediation: No discovery process in mediation. The parties often incur the full cost of discovery before mediation can proceed.
Issue: Discovery Disputes
Comprehensive Adjudication: Disputes are very rare. Parties are motivated to cooperate with the Adjudicator’s requests for evidence because they cannot win if the evidence is withheld. Negative inferences drawn from a party’s failure to provide needed evidence can be used to support the Adjudicator’s decision.
Public Court Litigation: The parties often incur huge costs due to discovery disputes which consume a large percentage of the attorneys’ time and effort.
Arbitration: When discovery is permitted, the parties often incur huge costs due to discovery disputes which consume a large percentage of the attorneys’ time and effort.
Mediation: No discovery process in mediation. The parties often incur the cost of discovery in advance of mediation.
Issue: Procedural Motions
Comprehensive Adjudication: No time is wasted with procedural motions or tactical maneuvering. The Adjudicator simply follows the Intelligent Justice Adjudication Rules and Procedure.
Public Court Litigation: The parties often incur huge costs and delays as their attorneys maneuver for tactical advantage with motions that have little to do with the merits of the dispute.
Arbitration: The parties often battle over the arbitrability of the dispute before the arbitration even commences. Other procedural battles also are common.
Mediation: The parties often incur the expense of procedural motions in advance of mediation.
Issue: Dispositive Motions
Comprehensive Adjudication: No time is wasted with motions to dismiss or for summary judgment. Meritless claims or defenses are simply rejected by the Adjudicator promptly after review of the law and evidence.
Public Court Litigation: The parties often incur huge costs and delays as their attorneys pursue complicated motions to dismiss and motions for summary judgment which frequently fail.
Arbitration: Arbitrators are increasingly allowing parties to pursue dispositive motions which suffer from the same problems as motions to a court.
Mediation: The parties often incur the expense of dispositive motions in advance of mediation.
Issue: Evidentiary Motions
Comprehensive Adjudication: No time is wasted with evidentiary motions. The Adjudicator simply rules on the admissibility of evidence as it is reviewed at the outset. The Adjudicator decides the case based entirely upon the documents and testimony that are admitted into evidence.
Public Court Litigation: The parties often incur huge costs as their attorneys battle over the admissibility of evidence via “in limine” motions in advance of trial or at trial.
Arbitration: Arbitrators are not required to follow the rules of evidence and consideration of inadmissible evidence is not grounds for appeal. Nevertheless, the attorneys still battle over evidentiary issues.
Mediation: Admissibility of evidence is rarely an issue in mediation.
Issue: Trial Witnesses
Comprehensive Adjudication: The Adjudicator examines witnesses under oath wherever they are found.
Public Court Litigation: Witnesses outside of the geographic range of court’s subpoena power cannot be compelled appear in person at trial.
Arbitration: Witnesses outside of the geographic range of subpoena power do not appear in person.
Mediation: No trial. All parties must compromise or the mediation fails.
Issue: Confidential Material
Comprehensive Adjudication: Proprietary materials are protected from disclosure by protective order. All other aspects of the Adjudication also are held in confidence except the facts used in the Adjudicator’s decision.
Public Court Litigation: Proprietary materials are protected from disclosure by protective order although this often is the subject of dispute. Public court trials generally are open to the public.
Arbitration: Arbitrations often are conducted on a confidential basis.
Mediation: Mediations often are conducted on a confidential basis.
Issue: Appeal
Comprehensive Adjudication: The parties may choose in advance to make the decision of the Adjudicator final or allow an expedited appeal to a private appellate specialist.
Public Court Litigation: At least one appeal is always permitted but it often takes several additional years to complete the appellate process.
Arbitration: Any right to appeal arbitration decisions is extremely limited. Legal error by the Arbitrator or failure to abide by the rules of evidence is not a valid basis for appeal.
Mediation: Not applicable.
Issue: Settlement
Comprehensive Adjudication: The parties can settle their dispute any time during the adjudication process with or without the assistance of their separate counsel. However, the Adjudicator must remain neutral and cannot advise the parties on settlement or participate in the negotiations.
Public Court Litigation: The parties can settle their dispute any time during the litigation process.
Arbitration: The parties can settle their dispute any time during the arbitration process.
Mediation: Mediation is the best method of reaching a settlement for parties willing to make substantial compromises.
Issue: Parties Who Prefer An Adversary Process
Comprehensive Adjudication: The adjudication process is designed to eliminate the cost and inefficiency of a public court system that requires hired adversaries. However, the parties are free to retain separate counsel to monitor the process if they so desire.
Public Court Litigation: The public court system is designed around the use of hired adversaries to litigate disputes.
Arbitration: The parties in an arbitration generally retain separate counsel to represent them.
Mediation: The parties in a mediation generally retain separate counsel to represent them.
Issue: Parties Who Prefer a Costly and Lengthy Process.
Comprehensive Adjudication: The adjudication process is designed to minimize cost and delay.
Public Court Litigation: Parties who expect to lose may prefer to exploit the high cost and long delays of the public court system to coerce a settlement.
Arbitration: Arbitration is more costly than an adjudication but often is less costly than public court litigation.
Mediation: The high cost and long delays of the litigation process often are used to force a compromise in the mediation process.
Reprinted with permission from IntelligentJustice.org