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It’s the classic question in trial law: Do I choose arbitration or litigation for my case?

There are pros and cons to both, as with any choice between two options, and depending on the specific case, one choice may be better than the other. Here is some information about arbitration and litigation (going to trial), so that you can decide which option is best for you.


According to the dictionary, "arbitration" is defined as:

A mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges. The arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute. To avoid clogged court calendars the parties often agree to have the matter determined by a panel such as one provided by the American Arbitration Association (which has a specific set of rules), a retired judge, some other respected lawyer, or some organization that provides these services. Usually contract-required arbitration may be converted into a legal judgment on petition to the court, unless some party has protested that there has been a gross injustice, collusion or fraud. Many states provide for mandatory arbitration of cases on a non-binding basis in the hope that these "mini-trials" (proceedings) conducted by experienced attorneys will give the parties a clearer picture of the probable result and lead to acceptance of the arbitrator’s decision.

Basically, arbitration is when both parties go before a person or group of people (who are not judges), and have their case decided outside of a courtroom. Usually, the decisions made in the arbitration are binding, and converted into a full legal judgment, although many states now allow non-binding arbitrations so that both parties can get a better idea for how a real court would rule, with the hopes that both parties will then willingly submit to the arbitrator’s ruling.

Arbitration Pros

1) Arbitration is done outside of a courtroom, and by a non-judge, and so arbitrated cases can often be addressed and decided much more quickly (think weeks or months instead of years) than if a court trial were pursued.

2) Arbitrations also usually cost less, since they take less time, and there is usually less discovery.

3) Arbitrations are confidential, since they are not held in a public courtroom

4) You usually have input into the selection of the arbitrator.

Arbitration Cons

1) Arbitrations are becoming more expensive, as they become more popular

2) The results are usually binding, and there is no option for an appeal as there would be in a case decided at trial.

3) If the arbitration is not binding it may not lead to a resolution of the case.

4) The Rules of evidence may be relaxed.

Litigation defines "litigation" as "any lawsuit or other resort to the courts to determine a legal question or matter." The pros and cons for litigation are fairly close to being opposite of the pros and cons for arbitration.

Litigation Pros

1) Litigation has clearly defined rules of procedure that allow for an appeal if you believe the trial court mishandled your case.

2) All legally-obtained evidence can be used in the decision-making process.

3) The jury is impartially chosen, so both sides have less of an ability to sway the legal process.

4) Experienced attorneys are used more in trials than arbitration, so you can have an experienced legal expert make your case for you.

Litigation Cons

1) Trials are usually more expensive than arbitrations.

2) Trials usually take longer, since the courts are so backed up.

3) The process is public, not private, so any embarrassing information about you that is brought up in court is not confidential.

If you are in need of a quicker settlement, either for medical or personal reasons, and you can’t afford the cost of a drawn-out court case, arbitration may be the better solution for you. However, if you have the time and money to invest in a court case, are involved in a case that involves a big company, or are hesitant about being bound to the results of arbitration, then you may want to pursue litigation instead.

In Rhode Island, most cases filed in Superior Court must be submitted to non-binding arbitration before being reached on the trial calendar. While either side may reject the decision of the arbitrator and have a trial before a jury, the use of this form of alternative dispute resolution has greatly increased the chance of settlement before trial.

One Comment

  1. Gravatar for Mike Bryant

    No matter the choice it still involves hiring a lawyer that knows how to do them each well. Arbitration is still a mini trials and it's the experience to know that which makes them work, beyond just quick and cheap. Very good information.

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