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Business litigation is a confusing time for entrepreneurs, business owners and operators. An experienced Business or commercial litigator can help guide you through the business litigation process. Business litigation or commercial litigation is a broad term used generally to describe any kind of a business dispute. Often, you will hear people talk about litigation, arbitration and mediation as if they are inter-changeable. They are not. It is important to understand the subtle, but important, distinctions between them.
Litigation refers to the discovery, pre-trial, law and motion, settlement, and trial phases of a business dispute when a complaint is filed with any court, whether it be a small claims court, or court of limited jurisdiction such as municipal court, or a superior, appellate or Supreme Court.
Litigants are usually represented by attorneys, either outside counsel such as a firm hired by the company, or what are informally referred to as “in-house” counsel, or an attorney that is paid by and works for the company he or she is representing. Only small claims court does not permit a litigant to be represented by an attorney (expect a small claims appeal matter). Documents filed as a part of litigation become part of the public records and are therefore available to the public which includes individuals, other businesses, such as your competitors, and the press. This is an important consideration in some situations. The outcome, or final judgment of a court of law, is binding on both parties. However, in some cases, a matter may be appealed to a higher court.
The cost of the courts and judges is paid for by the tax payers and is offset by filing fees. The rules of civil procedure to be applied in the court are decided in advance by law and are determined by the jurisdiction. To find out if litigation is the appropriate course of action for your business dispute please contact the law firm of Gaston & Gaston APLC by calling 619-398-1882 today.
Arbitration
Arbitration refers to a matter that the parties have agreed, often in advance, will be settled by and arbiter, who acts like a private judge. The cost of arbitration is borne by the parties, although costs may be shifted or redistributed among them by the arbiter in some cases.
Arbitration can be binding or non-binding. If it is binding, the parties must follow the ruling of the arbiter. If the arbitration is non-binding, either party may disregard the ruling of the arbiter, and may elect to litigate the matter in a public court of law. Documents filed in an arbitration are not made public. The procedural rules of arbitration are not necessarily agreed to in advance, although they may be generally agreed to in advance by contract. In the event none have been agreed to, the parties must decide which procedural rules to agree to. The negotiation of the rules of the arbitration in and of itself may require time consuming and costly negotiation. Additionally, agreement upon an arbitrator to hear the matter can be costly and time consuming.
While it is true that you do not have to wait to be assigned to a court and wait for a judge with a busy docket, it is not always a simple matter to agree upon an arbiter. Arbitration is usually seen in the employment context, in healthcare setting where patients must agree to arbitration and brokerage account disputes, among many others. While arbitration has the advantage of being more private that the public courts, it is not often faster or less expensive, as many people assume.
If you have questions regarding Arbitration or any other Business Law related topics call the law firm of Gaston & Gaston APLC at 619-398-1882 today.
Mediation
Mediation refers to a matter in which both parties have agreed to attempt to mediate a settlement before resorting to filing a lawsuit. A mediator is not a judge, and may not have special training in deciding cases. A mediator is paid for by those parties in the dispute.
The purpose of the mediator is to attempt to facilitate a settlement by listening to both sides, advising the parties of the strength and weaknesses of their positions, and facilitating negotiation of a settlement. If a mediation is unsuccessful, the mater may proceed to trial. If the mediation is successful, the parties will enter into a contractual settlement. The courts have no special power to enforce that settlement. The courts may only act to enforce the settlement of mediation if a party brings a separate suit for breach of the settlement contract.
Mediation is a private method of dispute resolution; therefore documents disclosed in mediation are not available to the public such as individuals, other companies or the press. If you have legal questions regarding Mediation please call the law firm of Gaston & Gaston APLC at 619-398-1882 today.
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