USA Law and Practice Contributed by: John Desmond, Alexis Taitel, Alice Samberg, Mackenzie Robinson and Peter Dragovich, Dickinson Wright PLLC
Dickinson Wright PLLC 500 Woodward Avenue Suite 4000 Detroit, MI 48226-3425 Tel: 313-223-3500 Fax: 844-670-6009 Email: NObrien@dickinson-wright.com Web: www.dickinson-wright.com/
1. Dispute Resolution Methods 1.1 Main Dispute Resolution Methods Litigation is the primary dispute resolution method in the United States. It involves the plaintiff (typically at least one individual or entity) filing a lawsuit with a court and serving the lawsuit on the opposing party, the defendant, who allegedly caused some harm. If the defendant believes that the plaintiff likewise caused some harm to it, then the defendant may bring a counterclaim against the plaintiff in an attempt to access its own remedies. The defendant may also opt to bring another party into the case if it believes that some other party is partially or fully responsible for the alleged harm. Mediation and arbitration are the main alternative dis - pute resolution methods used to resolve commercial disputes in the United States. The mediator guides the parties to a resolution, often involving compromise from all participants, but does not make any legal rul- ings or findings of fact. Rather, the mediator assesses the strengths and weaknesses of each party’s posi- tion and highlights those for the opposing party in an attempt to preview or predict how the claims may fare in litigation or at trial. The other primary dispute resolution method in the United States is arbitration. Unlike mediation, arbi- tration is a more protracted process that includes elements of traditional litigation, such as written dis- covery, motion practice, and ultimately an evidentiary hearing (similar to a trial). Arbitrations are presided over by either a single arbitrator or panel of arbitra-
tors who have more authority than mediators but less than judges. 1.2 Choice of Dispute Resolution Method Litigation continues to be the most popular dispute resolution method in the United States. However, most cases also involve at least some attempt to mediate, usually toward the beginning of the case’s life cycle. Furthermore, arbitration is common within certain categories of disputes. Generally speaking, mediation tends to be more pop- ular than arbitration, irrespective of the type of under- lying dispute. In some ways, mediation is viewed as a natural step in the litigation process, while arbitra- tion is a wholesale alternative in a different forum. It benefits parties to participate in mediation early in a case’s life cycle so that there is a chance of the dispute resolving before either party has expended significant resources litigating. Some courts even require parties to attempt mediation in certain circumstances or at particular junctures of litigation. If mediation fails, then the parties continue litigating as they were before. 1.3 Key Dispute Resolution Trends Courts are overburdened by the sheer number of cas- es on their dockets. This is particularly true for courts with split dockets, meaning those that are tasked with presiding over both civil and criminal matters. Because of due process protections under the United States Constitution, courts are obligated to prioritise the resolution of criminal cases over civil ones. This results in civil motions often remaining pending for many months or even upwards of a year. In that time, discovery may or may not be proceeding, but either
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