Arbitration and mediation are often talked about as though they are the same thing. They are not. Not even close.
Arbitration is like a trial, but in an informal setting. Generally, arbitration proceedings are presided over by a single, neutral decision maker, usually a retired Judge or experienced attorney who is paid for his or her service. Arbitrations only take place when the parties agree to take their dispute out of the legal system (i.e., public courts) and waive the right to a trial by jury.
Arbitrations may also have special rules regarding the discovery process, in which the parties exchange information, documents, depositions, and inspections. The rules of evidence at arbitration may also be relaxed to allow the arbitrator to consider evidence that might otherwise not be admitted in a formal legal preceding before a Judge or jury. Arbitrations may be completed in a couple of hours, or last weeks or months depending on the scope and size of the matter in dispute.
At the end of the arbitration the arbitrator makes a decision based on the applicable law and evidence considered. This decision may then be turned into a formal judgment as though it were rendered in a formal legal preceding and it will then be equally enforceable.
Mediations are also in an informal setting, and usually involve the assistance of a retired Judge or attorney experienced in the particular area of law that is applicable to the dispute. The mediator, however, does not make any decisions. Rather, the mediator typically listens separately to the evidence and arguments of both parties and then helps them evaluate their side of the dispute. The mediator may also help to develop a settlement proposal that can then be immediately transmitted to the opposing party.
Mediations can be held before litigation or at any time during the litigation process. Discussions during the mediation process are generally privileged, and what is said during the mediation process is generally not admissible in court. This encourages parties to be forthright during their discussions.
If the parties are unable to reach an agreement at mediation, then there is “no deal” and the status quo of the dispute is generally preserved. The parties are then free to proceed as they please.
Both methods of resolution are valuable tools that can be useful for dispute resolution. Contact us to find out more.
“Is the Juice Worth the Squeeze?” is an apt way of phrasing the complicated decision to file a lawsuit. In other words, will the expenditures of time, money, and business/life disruption be worth the potential return?
Time and Life/Business Disruption: Even though you hire an attorney, you will need to be an active team member in your prosecution (or defense) of a lawsuit. You will be called upon to provide information, both verbally and in document formats (i.e., hard copy and electronic), to your attorney to prepare your case. You will most likely have to answer questions, in written form and at deposition, and provide information requested by the other party. If you have employees who are involved in any way, even peripherally, they will need time from work to assist in the gathering of information. The typical lawsuit, from filing to trial will take 12-18 months- longer if there are appeals or special circumstances.
Litigation is Expensive: Litigation is expensive for a variety of reasons. Attorneys rarely work for free. Court costs are also increasing the cost of litigation, as even the filing fee for a Complaint in Superior Court in Los Angeles County, California is now $500. Your dispute may also require the retention of experts in certain fields (e.g., construction, human resources, real estate, medical, etc.). Depending on the number and type of expert needed, expert fees can often rival attorney’s fees. These fees and costs also may not be recoverable from the other side if you prevail.
Liability: What is the likelihood that you will prevail? Are there valid defenses to your claim? Are there mitigating factors that would render your claim subject to reduction even if you win?
Recoverability: Another major consideration is what will you achieve if you win? Does the other side have enough money to pay your damages? Is there insurance? Are there assets that can be attached or levied to pay you?
As part of our consultation with clients, we ask the question posed at the outset – “Is the juice worth the squeeze?” In addition to our initial analysis of the above factors in conjunction with the facts and law specific to each matter, we update and revisit this question as we learn more about the dispute. A key component of our role as our client’s legal team is to continually analyze the facts in light of applicable law and discuss with each client the likely result and answer to this question.
If you want to know if the juice is worth the squeeze, contact our office and we will help answer that question.
The time limit for pursuing a construction claim depends on the type of claim.
If the claim involves a remodel of an existing improvement, the general statutes of limitations applicable to negligence (3 years from discovery), breach of contract (4 years from breach), and property damage (3 years from discovery) apply.
If you have a newly constructed home, the statutes of limitations vary depending on the defect. California Civil Code Section 896 sets the standards for construction of various building components, and the specific timelines for each component.
For example, a claim relating to defective irrigation systems and drainage must be brought within one year (Section 896(g)(7)), decaying wood posts claims within two years (Section 896(g)(8)), plumbing within four years (Section 896(e)), and paint and stain claims within five years (Section 896(g)(10)). The outside limit within which any claim can be brought is 10 years from the date of completion. (Civil Code Section 3337.15.)
A careful evaluation of the claims to be brought (or defended), is therefore in order to see if they are timely.