Civil legal disputes as the Western world knows them date back to ancient Rome, yet society never seems to tire of them. Nearly 11.5 million new civil cases were filed in U.S. state and federal courts in 2021 alone.
Still, very few cases make it to a full trial. Some cases that are litigated are decided on motions, while many others are resolved through various means of alternative dispute resolution (ADR). For example, the U.S. Department of Justice reported that in 2017, 75% of its cases that underwent voluntary ADR proceedings were resolved that way, along with 55% of its cases that underwent court-ordered ADR proceedings.
In this post, we’ll define the term “legal dispute” and explore the four methods of dispute resolution. We’ll then share how to determine which method of dispute resolution is right for a given case. Finally, we’ll explain how technology can streamline the most complex method of dispute resolution: litigation.
What is a legal dispute?
A legal dispute is a disagreement or controversy that leads to a formal proceeding before a third party, such as a mediator, arbitrator, or judge.
A disagreement becomes a legal dispute when two or more individuals or entities have an issue that they are unable or unwilling to resolve by themselves. Typically, a disagreement rises to the level of a legal dispute when there is considerable money, property, or something else of value at stake.
Examples of civil legal disputes include matters involving:
- personal injury,
- medical malpractice,
- trusts and estates,
- intellectual property, and
- real property.
There are four ways to resolve a civil legal dispute, which we’ll explore in more detail next.
The four methods of resolving a legal dispute
In the U.S. legal system, parties may resolve a dispute through negotiation, mediation, arbitration, or litigation.
The first three methods are forms of ADR, meaning they take place outside the courtroom and are typically more collaborative. Litigation, on the other hand, involves going to trial and is usually the most confrontational method of the four.
Let’s look at the merits and drawbacks of each of these approaches.
Negotiation is “the process of parties bargaining in an attempt to reach an agreement.” In the ADR context, negotiation is a voluntary, generally informal discussion through which the parties may put a conflict to rest. A negotiation likely includes the parties’ attorneys, but it does not include a neutral third party such as a mediator or arbitrator.
Negotiation can occur before a party has filed a legal complaint or anytime during or after a legal proceeding, at least until a party has filed an appeal or the time for filing an appeal has passed. While a case is pending, a negotiation may take the form of a settlement conference, which is usually overseen by a judge who is not presiding over the case.
The advantages of negotiation are that it:
- is inexpensive;
- is fast and provides certainty sooner than litigation;
- is voluntary and relatively informal, which can put the parties at ease and make them more willing to cooperate with each other;
- usually takes place early on in a conflict, when tensions are at their lowest;
- requires collaboration and may help the parties better understand each other, allowing them to preserve or restore their relationship;
- allows the parties to participate directly and have greater control over the outcome;
- requires give-and-take and may be more likely to yield a mutually beneficial outcome;
- can lead to more creative solutions that a court typically could not enforce, such as having one party perform services for another; and
- may produce a legally enforceable court order (if a case is pending) or contract (if there is no open case).
The disadvantages of negotiation are that it:
- does not include a neutral third party to facilitate conversations, which can make it difficult to reach an agreement if the parties have a strained relationship;
- can lead to an unfair outcome if there is an uneven power dynamic between the parties; and
- can produce a contract that is more difficult to enforce than a judicial order.
Mediation is a form of ADR where “a neutral person help[s] the parties find a solution to their dispute.” During mediation, the neutral third party or mediator will typically explain the process, establish rules, and speak to the parties both together and separately.
Like negotiation, mediation may include the parties’ lawyers and can occur before or after a party has filed a legal complaint. Parties often turn to mediation when they fail to reach an agreement through negotiation. Mediation is non-binding, but as with a negotiated agreement, a court can enforce a mediated agreement as a court order or contract.
Mediation has the same advantages as negotiation. In addition, the addition of a skilled mediator can:
- balance out an uneven power dynamic between the parties,
- help the parties better understand each other’s positions,
- persuade a recalcitrant party to see reason and be more flexible, and
- offer solutions the parties may not have thought of on their own.
Regardless, mediation has its disadvantages. Like negotiation, mediation may be unsuccessful if the parties have a strained relationship, and it can be more difficult to enforce a mediated contract than a judicial order. Furthermore, although mediation is relatively inexpensive, it is often more expensive than negotiation due to the cost of the mediator, which usually falls to the parties to pay for.
Arbitration is an ADR method “where the parties in dispute agree to have their case heard by a qualified arbitrator out of court.” Unlike negotiation and mediation, where the parties agree to a resolution, in arbitration, the outcome is left to an arbitrator or panel of arbitrators, who make a final decision after hearing both sides.
While arbitration has much in common with litigation, it does not allow for extensive discovery. Also, while the arbitrator may allow the parties to enter evidence, the proceeding is not governed by federal or state rules of evidence or civil procedure.
Arbitration may be binding or non-binding. If the parties agree to binding arbitration, they are agreeing to be bound by the arbitrator’s decision, forgoing their right to pursue the claim in court and most rights of appeal. On the other hand, with non-binding arbitration, the decision only becomes final with the parties’ consent. If the parties do not consent, they can use the result of arbitration to facilitate settlement discussions and determine their chances of winning at trial.
The advantages of arbitration are that it:
- is less expensive than litigation,
- is faster and provides certainty sooner than litigation,
- involves fewer procedural requirements than litigation,
- doesn’t require the parties to work together to resolve the dispute,
- allows the parties to choose an arbitrator who specializes in a particular area of law,
- creates a more even playing field because the arbitrator can arrive at a fair conclusion, and
- produces a final decision that is typically enforceable.
The disadvantages of arbitration are that it:
- is usually more expensive than negotiation due to the cost of the arbitrator;
- is relatively formal and often involuntary due to mandatory arbitration clauses in many contracts, making it more contentious;
- is less collaborative than negotiation and mediation, so it is more likely to lead to a one-sided outcome and strained relationships;
- affords the parties little control over the outcome; and
- gives the parties limited rights of appeal compared to litigation.
Litigation is “the process of resolving disputes by filing or answering a complaint through the public court system.” It is the most formal dispute resolution method and is governed by federal or state rules of evidence and civil procedure in addition to local rules.
Litigation involves a broader scope of discovery than arbitration and culminates in trial unless the case resolves before trial through motions or settlement.
Litigation has many advantages. Like arbitration, litigation doesn’t require the parties to work together to resolve a dispute, and the judge or jury can weigh the evidence and arrive at a fair conclusion even when there is an uneven power dynamic between the parties.
Unlike negotiation, mediation, and arbitration, however, litigation proceedings are open to the public. That means that litigation allows the parties to bring issues to the public’s attention and seek vindication for a perceived injustice. Plus, litigation results in a more readily enforceable outcome than ADR methods.
Litigation also has many disadvantages. For example, litigation:
- is very expensive;
- is time-consuming, often taking a year or more to conclude;
- is involuntary and very formal, which can increase the tension between the parties;
- can lead to public scrutiny and embarrassment;
- gives the parties little control over the outcome; and
- can produce one-sided, unimaginative outcomes.
The parties in a dispute can choose whether to pursue negotiation, mediation, arbitration, litigation, or some combination of methods. But how do they make that decision?
How to choose the right method of legal dispute resolution
There is no one-size-fits-all approach to choosing the right method of dispute resolution because different methods are appropriate for different types of situations. Therefore, a party must evaluate each dispute individually.
Here are a few things that parties should consider when selecting the appropriate method of legal dispute resolution:
- their budget,
- how soon they would like the case to be resolved,
- what they wish to accomplish in resolving the dispute,
- whether they would prefer privacy or the opportunity to bring issues to the public’s attention and seek vindication,
- the level of formality they desire,
- the nature of their relationships with the other parties and whether they want to repair or preserve those relationships,
- whether they wish to maintain control over the dispute or would rather relinquish control to a judge or arbitrator,
- whether the controversy hinges on a question of law or can be resolved through a more practical lens, and
- the degree to which they want an outcome that is legally binding and readily enforceable.
Many parties choose litigation based on these factors. Because litigation is easily the most complex method of dispute resolution, legal teams must have the best tools possible at their disposal.
How technology can streamline the litigation process
Thanks to entertainment and the news, litigation is the most familiar method of dispute resolution.
But civil litigation in particular presents major challenges, including the need for timely evidence collection and the comprehensive exchange of information through eDiscovery. Without the right tools and processes in place, litigation teams risk delays, damage to their cases, and even court sanctions.
IPRO specializes in creating solutions that streamline litigation workflows and make eDiscovery more manageable.
For example, IPRO’s Legal Hold solution automates the legal hold process, allowing users to issue legal holds instantly and preserve data in place. The software also helps users manage and track both legal holds and custodian responses from a central interface, ensuring accountability and defensibility.
Live Early Data Assessment (Live EDA), on the other hand, is a proven in-place search solution that uncovers live data across multiple sources and provides valuable insights before collection even begins. Live EDA then compiles this information into a content index that tells the user where to find each piece of information, how long it’s been in that location, and who has access and modification privileges. Users can add new custodians or data sources to expand their inquiry at any time without having to restart the search process.
Lastly, ZyLAB ONE is an end-to-end eDiscovery platform that automates the legal hold process and allows users to search, review, and analyze data in place. ZyLAB ONE can handle large volumes of data and different types of data quickly and efficiently, allowing litigators to save their clients time and money.
When litigation is the best—or only—option, IPRO’s solutions can help legal teams preserve data and fulfill eDiscovery requests faster and more accurately. With tools like these on their side, legal teams can deliver great results to their clients, keeping them coming back for future representation and referring new clients in the meantime.