Benefits of Private Arbitration vs. Court Litigation

Arbitration of disputes through arbitration instead of court involves several significant benefits and advantages:

·       Insurance against “outlier” results:   Jurors often have little or no experience in a given area, and the chances that all or even most jurors will have applicable experience is slim to none.  Judges are often appointed or elected based on their experience in criminal law and often have little experience with civil matters, business disputes, etc. An experienced attorney-arbitrator with expertise in the subject area of the dispute is better able to correctly decide factual and legal issues than a jury or an inexperienced trial judge struggling in an unfamiliar area.  Selecting an arbitrator or panel of arbitrators with applicable experience will help insure against extreme results based on emotion or other tangential evidence.


·       Speed: Civil matters in central Oregon typically take 12 to 18 months to get to trial and are often “bumped” at the last minute due to higher priority matters involving in-custody criminal defendants or child welfare issues.  With state budgets getting cut, time-to-trial has been increasing, and civil matters get lowest trial-setting priority.  An arbitration hearing can be held within months.  With a quick, fair resolution, individuals and businesses can get back to more profitable and enjoyable endeavors.


·       Economy: The experience of civil arbitrators, tailored procedures of arbitration, and lack of last minute bumps to higher priority cases result in significantly reduced attorney’s fees and other costs.  The ability to return more quickly to regular business lowers the lost opportunity costs associated with time-consuming court litigation.


·       Tailored Hearing Dates and Locations: Trial courts are burdened with the scheduling of all types of matters, including criminal arraignments, custody hearings, and other docket-clogging matters, with civil matters taking low priority.  Private arbitrations are restricted to civil matters, and hearing dates and locations can be set based on the convenience and wishes of the attorneys and parties, without risk of getting “bumped” due to a higher priority criminal matter.


·       Certainty of Hearing Dates: Because an arbitration hearing date has been set with the consent of all concerned, and without the risk of getting “bumped” due to higher priority matters, private arbitration  hearings almost always take place and where scheduled.


·       Privacy: Anyone and everyone, including neighbors and newspaper reporters, can walk into a court room.  Arbitrations take place in the privacy of a conference room, allowing businesses to safeguard sensitive or valuable information and individuals to avoid public dissemination of potentially embarrassing or private information.


·       Finality:  Arbitration awards are entered as court judgments and become as final and binding as a judgment entered after a court trial.  The expedience and finality of a judgment following private arbitration allows the parties to resolve their dispute and move on to more productive endeavors.


Three things to remember when hiring a trial lawyer.


  1. Litigation is about money.  Make sure you talk to your lawyer about possible outcomes, relative likelihood of each possible conclusion, and cost relative to the expected aftermaths.  If you feel an emotional need for litigation, think about it, and try to attach some quantitative value to the equation.  The average case costs $30,000.00 to bring to trial, and ends with another $20,000.00 if appealed.  So before rushing to court, consider Alternative Dispute Resolution, either via informal settlement negotiations or a more structured mediation/arbitration process.
  2. Hire a lawyer you can trust.  A lawyer will expect you to follow his or her advice.  We are required to act in the clients’ interest, but if you don’t feel a lawyer is being straight forward at the outset, you have reason to politely decline to enter into a retainer agreement.  To get the most effective legal advice, you will need to be prepared to follow your lawyer’s advice.  Continue your search until you find someone whose advice you know you can trust.
  3. Understand the value of expertise.  Not all lawyers are created equal.  There is a spectrum of ability, professionalism, and experience with us, just as there is with all professions and trades.  Look not only for a lawyer you feel you can trust, but also one who has experience in the area you need help with.  Don’t be afraid to ask questions and interview multiple lawyers until you find the one that is right for you.


Advantages of ADR.

Have you heard the complaint that litigation—taking someone to court—is too expensive?  That it favors the wealthy?  Takes forever to actually get to trial?  The unfortunate reality is that there is truth to all of these statements.  ADR—or Alternative Dispute Resolution—can provide a solution to these problems.  There are many types of ADR, including mediation, arbitration, and less formal settlement negotiations.  ADR can be mandatory, such as when there is a contract that requires mediation prior to litigation, or voluntary.  ADR can be binding, in which case an arbitrator’s decision is final, or non-binding, in which case either side can proceed to litigation.


The “rules” of ADR can be decided by the parties or set by the arbitrator.  Discovery can be expedited, and scheduling is up to the parties and the arbitrator or mediator.  The expedited rules and availability of the arbitrator or mediator can decrease the cost substantially.  Instead of waiting one, two, or three years for resolution, a case can be decided in months, allowing the parties to put the contested issues in their past and leaving them free to get on with more productive and healthier endeavors in their lives.


Philip Anderson has been involved in ADR for over 25 years.  He is an approved arbitrator for the Deschutes County Court system as well as the Arbitration Service of Portland.  He has been involved in mediating or settling hundreds of cases.  Through the years, Mr. Anderson has acquired a reputation for his ability to quickly grasp the legal and factual issues and to reach unbiased decisions.  If you feel ADR might be an avenue worth exploring in regard to a dispute you have, or if you are an attorney considering ADR as a way of “leveling the playing field” or reaching a fair result in a cost-effective and timely manner, give Mr. Anderson a call today.