Arbitration & Dispute Resolution
About Arbitration & Dispute Resolution Cases
There are many ways to resolve a legal dispute: through negotiation, mediation, arbitration or litigation. In fact, frequently more than one method will come into play before a dispute is fully resolved.
Negotiations can occur even before a lawsuit has been filed. The attorneys at GD frequently send or respond to demand letters prior to the initiation of a lawsuit as a way to quickly and cost effectively resolve legal disputes. If the parties are able to agree to terms of a settlement, the agreement will generally include a written release of the right to sue. In this way, the injured party can be compensated, and the party who allegedly caused the injury can make a payment with the security of knowing the matter is at a full and final end. The release guarantees that the party cannot be subjected at any future time to further legal action over the dispute in question.
Negotiations can occur at any stage in a proceeding, including after a lawsuit has been filed, and even right up to—or during the course of —a trial. Any trial involves both costs and risk, no matter how strong a case may appear. The attorneys at GD are experienced and tough negotiators who have the ability to craft creative solutions to most any legal problem.
Colorado state courts and most federal courts require that the parties attempt some form of alternative dispute resolution (ADR) in an effort to resolve the case short of trial. Mediation is the most common form of ADR.
When parties engage in mediation, they hire a neutral third party—the mediator—to facilitate settlement negotiations. Most mediators are experienced attorneys or former judges. The mediator is not there to make any decisions, and in fact has no authority to do so. Instead, the mediator’s job is to work with the parties to help them better understand their respective strengths and weaknesses in an effort to bring them closer to a settlement. No settlement can occur in mediation without the express consent of all parties. For this reason, there is no risk in participating in the mediation process.
The process typically starts with both sides sending confidential mediation statements to the mediator prior to the scheduled mediation session. These statements outline a party’s version of the case, including the strengths and weaknesses of each side’s positions, any relevant issues of law, and significant questions of fact that would need to be resolved at trial. This gives the mediator some useful background on what to expect, and how far apart the parties are in terms of their assessment of the likely outcomes at trial.
Mediation sessions are typically scheduled for either a half-day or one full day. While some mediators will begin the session by meeting with all parties together, sometimes the acrimony is so high that this is neither possible nor productive. The majority of the mediation session will be spent with the parties in separate rooms. The mediator takes turns talking with one party and then the other, helping each party to more appropriately assess the value of its case, and conveying settlement offers back and forth. If the parties are able to reach agreement, the mediator typically helps formalize that agreement in a writing signed by all parties. The fees for a mediator are generally split between all parties.
Many contracts today include a mandatory arbitration provision. When that is the case, the parties to the contract have waived their right to seek redress through the court system, and must instead have their dispute resolved through arbitration. Even if a dispute does not involve a contract, parties can mutually agree to have their dispute resolved through arbitration.
Binding arbitration is essentially an informal trial. The arbitrator serves as both judge and jury, making decisions on both factual and legal questions in order to come to a final judgment in the case. Most cases are presided over by a single arbitrator. However in larger matters, the parties can elect to have a three-member panel arbitrate the dispute.
With binding arbitration, the arbitrator’s decision is usually final in the sense that the powers of appellate courts to overturn arbitrator’s decisions are limited. The parties generally split the cost of the arbitrator, although the arbitrator can order a different allocation of fees if appropriate.
Arbitration is generally much faster than litigating through the court system, and usually involves less expense to the parties because the procedures involved are less formal and time-consuming.
In certain instances, attorneys do not need to be licensed in a particular state to represent clients in arbitration proceedings there. The civil litigation attorneys at GD have years of experience representing clients in arbitration proceedings in Colorado and around the country. They have the skills and experience necessary to ensure your interests will be represented to the fullest.
GD Accomplishments in Arbitration & Dispute Resolution Services
- David Driscoll and Sarah Croog represented a large commercial client at an 11-day arbitration hearing in September and October 2007 involving tens of millions of dollars, a highly complex contract, and allegations of breach of contract, misappropriation of trade secrets, and civil conspiracy. The case results in an arbitration award in favor of the client and the dismissal of all claims. The award was affirmed in the United States District Court for the District of Colorado and by the Tenth Circuit Court of Appeals.
- David Driscoll and Kenneth Morris represented the purchaser of a 74-room hotel in Alamosa, CO, seeking to recover losses resulting from the seller’s failure to disclose material facts relating to the transaction. After a four-day arbitration in May, 2011, the arbitrator awarded David and Ken’s client $300,000 on his claim for fraudulent nondisclosure. The opposing party never made a pre-award settlement offer. David and Ken will now seek an award of attorney fees and costs in accordance with the contract.
- David Driscoll defended a firm client in an American Arbitration Association arbitration of a commercial dispute involving claims and counterclaims for breach of contract. Eight witnesses testified and over one hundred exhibits were received in evidence. The claimant sought approximately $48,000 in damages from David’s client and David’s client sought $12,719.51 in damages from the claimant. In June 2011, the arbitrator awarded the claimant $0 and awarded $12,119.51 plus costs to David’s client.
Litigation is the process by which disputes are resolved through the court system or a comparable administrative proceeding forum. Cases can be tried either to the judge or to a jury. If a jury is involved, it will be the members of the jury who determine all questions of fact in a case, including weighing the credibility of all witnesses. The judge always rules on questions of law, however.
Cases are assigned upon filing to a particular judge, who serves as referee and decision maker for any disputes up through and including the trial. Sometimes disputes related to discovery, however, will be decided by a court magistrate instead of the judge.
Once a lawsuit is filed, a host of obligations and deadlines come into play. For example, under both Colorado and federal law, there are mandatory disclosure requirements at a very early stage in the lawsuit. Parties who are not aware of or fail to comply with critical case deadlines risk being sanctioned by the court. The court can order a party who fails to meet its obligations to pay a monetary sanction to the other side, or it can enter an order affecting the party’s legal rights in the case. For these reasons, it is crucial to know your rights and obligations. The attorneys at GD are experienced litigators who can help you navigate the litigation process to your best advantage. Contact them today to discuss your pending legal dispute.