The ultimate decision maker can be one of the most important factors in resolving your dispute. Is your dispute being decided by a judge or a jury? Or an arbitrator or panel of arbitrators? Or is a mediator helping you come to an agreement? Or a proactive arbiter? Let’s take a look at the roles of each in more detail.
Judges are either appointed (at the Federal level) or elected (at the State level, with an outright election or with an initial appointment and then a retention election). They are almost always attorneys with a litigation background. Although a judge’s role is basically reactive – responding to what the parties’ attorneys choose to present – the judge assigned to your case can play a major role in the outcome. Judges are trained and experienced in recognizing and resisting improper influences, but factors like subconscious bias, political philosophy, caseload, and even mood, can greatly affect a judge’s decision. Also, the complexity and subject matter of your case can make a huge difference, depending on the judge’s experience in deciding that type of matter. While judges may be a preferred decision maker, it is noteworthy that most cases never make it to the courtroom. It is statistically far more likely that the parties will settle using one of the other decision makers or facilitators listed below.
In the United States, we use a jury system to decide many civil and criminal matters. Juries are often said to represent our collective conscience and sense of right and wrong, and are a powerful force for assuring that the greedy, powerful or privileged do not hold undue sway in how we define justice. Although juries are supposed to be made up of your peers, oftentimes juries contain few, if any, true peers of the litigants. While not lacking intelligence, they may not have the technical expertise or business experience necessary to resolve certain disputes properly, and while certain procedures improve the chances of getting a fair jury, juries can still be swayed by a good story or their own experience. As with judges, very few cases actually go to a jury trial and most end up with a different decision maker.
Arbitrators are usually retired judges, attorneys, or industry experts. Benefits of using arbitrators are their likely knowledge of the subject matter at issue, privacy, and sometimes the ability to expedite the process compared with going to court. Disadvantages are that they require agreement to the process – usually specified in contracts – and, if a mistake is made in a binding arbitration, there is no appeal to a higher court. In disputes warranting a panel of arbitrators to help assure a correct decision, choosing a panel can be done by many different methods, two of the most common methods are “yours, mine, ours” (where both parties agree on a third arbitrator) or “yours, mine, theirs” (where the two arbitrators pick a third arbitrator). Like going to court, arbitration is an adversarial process where each party is represented by lawyers who advocate certain positions and outcomes.
Mediators are usually attorneys, retired judges, or industry experts that do not directly decide disputes but instead help the parties reach a private agreement. Mediation can be ordered by a court before allowing parties to go to trial, or it can be an agreed upon procedure in a contract. Successful mediations can save the parties considerable stress, time and money by settling or helping focus a dispute. Unsuccessful mediations often merely add to the cost and frustration of legal process. Like litigation and arbitration, most mediations are driven by the parties’ opposing attorneys, with the mediator reacting to what counsel have discovered and argue.
Neutral arbiters or dispute resolution advisors are similar to arbitrators or mediators, respectively, but the private process they conduct is a non-adversarial investigation and analysis that they drive, not opposing legal counsel. A proactive arbiter can be specified in an agreement or chosen at the outset of a dispute. They, like arbitrators or mediators, can be retired judges, attorneys, or industry experts, and act as either decision makers or neutral advisors who facilitate negotiation and make a recommendation, depending on what the parties have agreed at the outset. If the parties agree to a binding process, they can make the arbiter’s decision final or subject to an appeal. Because their process is not controlled by the parties’ separate attorneys, proactive neutrals can fix the costs of investigation and analysis in advance and assure that it does not consume what is financially at stake, which is especially attractive in limited stakes disputes.
Choosing who decides your dispute can be a defining factor in achieving real justice.