This research work aims to bring out the difference and similarities between Arbitration and Litigation in the United States. This will enable different parties to dispute to choose the desired choice between Arbitration and Litigation while solving the case. They allow parties to bring cases to be solved by either judges or experts. This paper shows different types of factors that are considered before choosing any form of dispute resolution although in some countries parties should first pass through arbitration before going to litigation.
According to David (11) arbitration is a private method that is used in dispute resolution where parties represented chose specific individuals that decide a matter on an issue following a process acted and agreed upon by the parties. This happens in a less minimum court intervention between the parties. Or a trial that is ready to go on trial to avoid court trials and is held by a small group of people that are not judges with a purpose of solving and settling the dispute. It features very simple rules of evidence presented before the experts. Parties choose whether to bind their case or be non-binding. Decisions made by arbitrators are usually final. There are two kinds of arbitration parties: Domestic arbitration that deals with parties that come from the same country and international attribution that involve two parties from different countries (Tupper 3).
Characteristic of Arbitration
In the United States, arbitration is one of the easiest ways to solve a case it is consensual and can only take place when two parties have agreed towards it. The parties involved with dispute can choose the arbitrator they want under the WIPO arbitration rules. The decision of Tribunal in arbitration is easy and final to be enforced in law because parties agree to carry out decisions without delay of the arbitral tribunal under the WIPO Rules. When the hearing is done, each party is given the right to present the witness and the evidence. It is neutral where parties are able to choose the right elements that are used in the language, applicable law and venue of arbitration to make sure no party enjoys the advantage of home court (Tupper 6). Arbitration should ensure the procedure undertaken under the law is confidential. This is ensured by the WIPO rule where they enforce the confidentiality of the arbitration co-existence and is usually used in commercial context as they resolve the dispute. The rule restricts secret information to be revealed that is submitted to that arbitral tribunal.
Advantage of arbitration
One advantage experienced in arbitration in the United States is that a party is able to select the arbitrator of their choice between a lawyer and an expert according to the case or legal presented. The better decision can, therefore, be made because arbitrators are expected to take more time. The cost and confidentiality is also ensured in the case than highly trained judges can. This results in a valuable resolution to complex cases. Another advantage is that parties can consider when choosing their form of law in that they can have high control on the process taken and schedule on that specific case thus there is no high technical competence of the judges chosen in the court. (Tupper 6-12). WIPO Rules can be used to fit the case hence enabling easy and fast ways in providing solutions to cases among the members affected. It also helps speed up the process because it is even less costly. Arbitration in the United States awards and agreement are enforced internationally (Tupper 6-12). There is also less exposure to punitive damages and juries in United State that is evidenced by the parties where one is able to choose the required law and choice to eliminate the advantage of home court
The absence of juries in the United States is a disadvantage to some of arbitration processes due to lack of strong defense in the case presented. One party may lose a case by an early ruling that is not appealable to an arbitrator in case of uncertainty regarding the process taken to solve a dispute thus becoming important to the outcome. The absence of appealing may cause inappropriate and risky behaviors that may deter proper jury to be carried out (Tupper 12 - 18). One party may be disadvantaged due to the limitation of the discovery that often arises in the event of the accusation. In arbitration, there is a lack of appropriate flexibility in rules that is evidence on the facts found in the case and the parties. If an arbitrator party is willing to obtain any kind of future retainers, it may result in compromising awards.
If an arbitrator breaks a law, there may be no right of appeal depending on the arbitration legislation or the arbitration clause. The arbitrators rulings are based on more concepts of equity and justice and may not be tied to the legal rules and principles of the evidence or law therefore, decreasing the predictability of the dispute solution (Tupper 12 - 18).
On the Contrary, litigation in the United States is the process where parties take a case to the court that is common in civil lawsuits to settling dispute and controversies between people and organizations. Unlike the arbitration, litigation allows one person to bring the charge against another person to whom the charge is brought. By litigating a case one may bring a case to court and charge someone with a specific offense to come with a solution (Drukker 1).
In litigation, courts proceedings allow entities involved in the case to be joined as parties thereby increasing its flexibility because it is highly controlled by procedural rules governed by strict laws (Hoffman 1 - 3). Judges give rights to appeal because sometimes they make mistakes of law and facts. Although they are not easily reversed, they give the ability to review a case through the appellate panel. There is enforceability of decision making that is rendered by a jury or judge in the courtroom.
Litigation of some case is not carried out in a Speedway. It can take even years for the dispute to be solved through the appeal process. Appeals to different courts in the United States create a challenge to the correctness of decision and are usually limited such as irregularities and frauds. Judge's decision towards a case is governed by a set of rules and evidence constrained by statutory and the law case. It is expensive and only favors the wealthy family.
Judges are not selected according to the high experience related to the construction of industry thus providing a poor level of expertise in decision-making (Hoffman 1 - 3). There is no individual judge assigned to a specific case. The process ends up becoming expensive because there are many multiple judges involved in solving the dispute and it lacks confidentiality. The case is presented in a courtroom where there is a high amount of uncertainty and unpredictability when accused parties ask the jury to solve the case.
Differences between Arbitration and Litigation
The confidentiality of the case in courts is not important in litigation as compared to the importance attached to the arbitration process. The process is private between two parties in arbitration while on the contrary in litigation it is public (Tupper 19). The litigation process is formal where there is no appeal. On the other hand, it is informal in arbitration where the appeal is possible. The time waited for a case to be heard short because the arbitrator is selected as soon as possible while in Litigation it is long because there must be a schedule for the case to be heard. There is limited use of attorneys in arbitration while extensive on litigation. The evidential process allowed in arbitration is limited and rules of evidence used in litigation (Drukker 2). The type of proceeding done in arbitration is civil and private while that of Litigation is civil and criminal (Hoffman 3).
Similarities between Arbitration and Litigation
Both parties have the same statement of case, preparation of a list of documents and foreclosure, preparation of evidence and drafting awards. Procedures and processes done and followed in the courtroom are the same. They both conduct same commercial practices in solving dispute among the parties (Drukker 2).
It is significant to consider the benefits, risks and to be aware of different forms of dispute resolutions in the United States. Arbitrator and Litigators should evaluate different types of disputes and try to develop the best and the right strategy to all types of disputes. All parties should be able to choose the right way in solving the dispute either the Arbitration or Litigation according to how they want to solve the dispute.
Drukker. "Arbitration." Drucker Solicitors, Litigation & Disputes / Parties to legal proceedings (2015).
Hoffman, Matthew M. "The Advantages and Disadvantages of Arbitration vs. Court Litigation." http://www.tuckerlaw.com/2015/02/13/advantages-disadvantages-arbitration-vs-court-litigation/ (2015): 1-3.
Tupper, David. Litigation Vs. Arbitration. CLE-ACC Houston: Back to school symposium, (2011): http://www.drukker.co.uk/publications/reference/arbitration/#.Vf0J0G58scV
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