Moving Cases to Conclusion and Thinking Outside the Box

Melissa H. Katz, Esquire
September 22nd, 2020
By: Melissa H. Katz, Esquire

How do you move a case to conclusion if you can’t agree on a settlement and a jury trial is light years away? Since both parties have a common interest in expeditious and successful case closure, alternative methods of deciding the case should be considered. It is more important than ever to think outside the box of traditional methods of case resolution given the backlog of cases COVID-19 has created in our court systems.

Whether liability, damages, or both, are at issue, remote mediation, trial by judge, or arbitration, with or without high-low agreements, are viable options of adjudication. This article will focus on arbitration and suggestions to avoid missteps, disagreements and derailment.

Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute, usually after receiving evidence and hearing arguments. Arbitration differs from mediation because the neutral arbitrator has the authority to make a decision about the dispute. The decision can be binding or non-binding. The arbitration process is similar to a trial in that the parties make opening statements and present evidence. The parties have flexibility to agree on how evidence will be presented and to what extent state or federal rules of evidence will control the admission of evidence. After the hearing, the arbitrator issues an award. As part of the agreement to arbitrate, the parties will need to decide whether the award is binding or non-binding. If the award is binding, the decision is final with some exceptions. When arbitration is non-binding, the award is advisory and can be final only if accepted by the parties.

Arbitration can be an attractive option because the advantages include a process that is less time-consuming and less expensive, mutual selection of an experienced and knowledgeable decision maker, flexibility in rules regarding presentation of evidence, and privacy.

Before arbitration becomes a viable method of alternative dispute resolution, it is important that the parties discuss, formulate and agree upon a set of written rules which will govern the arbitration. There is no agreement to arbitrate until there is a meeting of the minds regarding how the arbitration will proceed. If you have a trial date, do not stay the case or continue the trial date until you have reached agreement on the details of the arbitration.

The critical factors which need to be agreed upon are as follows:

  • Who will serve as the arbitrator(s)?
  • How will the arbitrator(s) be paid?
  • Is the arbitration decision binding or non-binding?
  • Where will the arbitration take place and/or in what format?
  • What are the issues the arbitrator will decide:
    • Liability,
    • Damages, or
    • Both?
  • How will the evidence be presented:
    • Opening statements, time limitations?
    • Live, # of witnesses, time limitations?
    • Documentation, stipulations as to authenticity?
    • Deposition testimony, discussion of evidentiary objections?
    • Closing arguments, time limitations?
  • What are the rules of evidence that will govern the evidence presented to the arbitrator?
  • Is there a high/low agreement?
  • Will there be an exchange of arbitration submissions and/or briefing schedule for any legal issue?
  • Who will be in attendance at the hearing?
  • What are the conditions for appealing a binding decision?

If you cannot reach agreement on the governing rules or admissibility of evidence, then consider agreeing to allow the court in which your case is pending to rule on motions in limine (exclusion or admissibility of evidence) with both parties agreeing in writing to be bound by this decision. In the alternative, discuss any stumbling block with your proposed arbitrator to see if he/she can help resolve the issue.

While arbitration is a useful tool, an agreement on all of the ground rules before proceeding is important to prevent missteps, disagreement and derailment.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More