In our continuing series on civil litigation in Oregon, we discuss the concept of alternative dispute resolution.
The Oregon Civil Rules of Procedure do not require that the parties participated in alternative dispute resolution. However, many local courts may schedule settlement conferences, or at least require the parties to disclose any efforts at alternative dispute resolution. Let's first defined the term, and then explain wherein fits into civil litigation.
Alternative dispute resolution can take many forms. For example, to parties may agree to forgo the jury trial process, and go to arbitration. An arbitration is simply a "private trial" where the parties submit their grievance to a panel of decisionmakers. This decisionmakers hear evidence, and render a final decision, in many cases. Arbitration is attractive to many people because it is more efficient, and less expensive than a formal court or jury trial.
Another form of alternative dispute resolution is a "mediation." A mediation is simply a process where each party agrees to have a disinterested person, referred to as the "mediator" to act as an intermediary in an effort to resolve the conflict. A good mediator somebody with a reputation for being fair, but also effective in getting case is resolved. Because both parties have to agree on a mediator, there is little chance that a mediator would be biased toward one party or another. Often times, a mediator is an older attorney, or a Senior Judge. An inexperienced civil litigant is certainly going to seriously consider the opinion of a judge who is seen as few things in her time on the bench.
Certain courts may have local rules that encourage or require a judicial settlement conference. These pre-trial gatherings are much like mediation. The judge attempts to act as a mediator in getting the case is resolved. Whether the mediation is private, or part of a judicial settlement conference, in most cases, each attorney is submitting a pre-mediation confidential position paper. The mediator will not share any of the contents of the position paper unless the attorney or his or her client authorizes disclosure to the opposing party.
In order for a mediation to have any chance of success, each party must be willing to approach negotiations in good faith. Sometimes, a court sponsored mediations do not work unless each party is willing to enter the mediation voluntarily.
Some attorneys feel that mediation is overutilized. I believe there is some merit to this argument. In many cases, to attorneys should be able to work together has professionals to try and resolve the claim. However, the overriding consideration in whether to go to mediation is simply whether it is in the client's best interest.
If you have any injury claim in Oregon or Washington, and have questions about the alternatives to trial, call us at 503-325-8600. We have extensive experience in preparing for and mediating significant injury claims.