Litigated Final Decisions
To compare the results of alternative dispute resolution to litigated decisions, let’s begin with a working definition of a final decision in litigation. A litigated final decision will usually come after a trial or an argument. As mentioned above, the term final decision can be a term of art in litigation. As a case moves through the levels of litigation, there may be a few final decisions, typically one at each level. In litigation, the term “final decision” is often defined as the decision by the decisionmaker that concludes the case at the current level. For example, a final judgment in a jury trial will be the jury verdict. This differentiates it from the other decisions rendered throughout the case, such as a motion judgment and other interim relief. While other decisions impact a portion of the case, a final decision is the last decision in the case on that level after hearing all the evidence.
In most cases, for a decision to be appealed, it would need to be a final judgment on the case. This is why the term is so important because it dictates the timing of appeals and when and how a case is resolved. A final decision in litigation both concludes the case at that level and opens it up for further review at a higher level unless it has reached the highest level. It is both an ending and an opportunity. However, what would be compared to a final decision in alternative dispute resolution does not provide the same oxymoron of an end and a beginning. Instead, a final decision in alternative dispute resolution is often just that—the final decision. It does not carry with it an opportunity to take the claim further or have it reviewed in the same way.
Final Decisions in Alternative Dispute Resolution
Final decisions in alternative dispute resolution come in a variety of forms, often depending on the type of dispute resolution practice used to accomplish the decision. There are two main results from alternative dispute resolution—settlement agreements and arbitration awards. Each type will function differently and have a different effect on the case. Understanding the result of an alternative dispute resolution may be is important when considering which method to use.
A settlement agreement is an agreement between the parties to resolve the case based on the terms of the agreement. It is a written document that will be signed by all the parties. In many cases, it will be filed with the court if a case was pending, and a party can be found in contempt of a settlement agreement and face consequences if not properly following the terms of the agreement. The parties to a dispute will often accomplish a settlement agreement when they have either negotiated with each other or when they have participated in mediation. Negotiation is a process where the parties communicate directly with each other to navigate the terms of an agreement. Mediation is a process where the parties negotiate with the assistance of a third-party neutral to keep the conversation on track and help the parties find their way to an agreement. Some common characteristics of a settlement agreement are:
- Full or Partial: When considering settlement agreements, people often think that a settlement agreement will resolve the entire dispute. While that certainly may be the case, a settlement agreement may only cover a part of the dispute and leave the other portions up to litigation. For example, in many family law disputes, the parties can agree on how to divide their property but cannot agree on custody. A partial agreement would allow the parties to only leave custody for trial.
- Thorough: A settlement agreement, whether full or partial, will often be incredibly thorough in the recitation of the agreement. It usually provides a way to punish one or both parties if they do not follow the agreement and provides for details in a variety of situations that could arise. This helps the parties understand what will happen if the agreement is not followed and what to do in a strange situation.
- Voluntary: Unlike an arbitration award or a litigated decision, a settlement agreement is voluntary, meaning that it must be agreed to by the parties. This is unique in the world of final decisions and gives the parties the most control over the situation. This level of control often means that the parties will abide by the agreement, especially when the agreement is a collaborative result of mediation.
- Binding: The agreement between the parties is considered binding, especially if entered into the court file. There are often deterrents from violating the agreement.
While a settlement agreement is not always considered a final decision, it often has a similar effect. If both parties are happy with the result, they will likely follow it and nothing further will come out of the case. It will often exist as the only judgment until the parties choose to vacate the agreement or violate it.
The other common form of result in alternative dispute resolution is the arbitration award. An arbitration award, as the name suggests, is the result of arbitration between the parties. Arbitration is a process where a third-party neutral or panel will hear the evidence put on by the parties and will determine how to resolve the case. While it sounds similar to litigation, arbitration is less formal and confidential, giving the parties a slightly more collaborative feel. The award is what lays out the result of the dispute and how it will be handled between the parties. Common characteristics of an arbitration award are:
- Involuntary: One distinction between a settlement agreement and an arbitration award is the fact that an arbitration award is not voluntary. While the parties can elect to use arbitration to resolve their dispute, once the evidence and testimony have been passed to the arbitrator, the parties lose control over the outcome of the case. The parties have little say over the terms. This makes the award similar to the final decision in a litigated case and less like a settlement agreement.
- Binding: Like a settlement agreement and a litigated decision, an arbitration award is binding on the parties. However, an arbitration award is likely the most binding result of a dispute because an arbitration award is very rarely appealable, except in the case of arbitrator misconduct. This usually means that an arbitration award is a final decision ever in the case.
- Bare Bones to Spelled Out: An arbitration award may be bare-boned and only state the outcome of the arbitration and who can enforce and collect. However, it may also include the reasons that the decision or it may contain full reasoning of the decision with the facts, similar to a finding of fact and law in a litigated case. The arbitrator has the freedom to give as much or as little information as they choose.
- Creative: Arbitrators are not bound by the same set of laws and rules that judges and juries will often be bound by in litigation. This means that an arbitrator has more freedom in creating the award and does not need to pick one side over the other. Arbitrators may split the recovery or find a creative way to make both parties walk away with excitement about the award, or they may just determine that one side won the case and gets to collect.
- Guaranteed: Unlike settlement agreements, the parties are guaranteed to have a final decision in the case at the end of arbitration. When the parties choose arbitration, they often do so to resolve the case completely.
Arbitration awards are often the last and final decision on a case. They carry a set of decisions that are very unlikely to be appealed and can control how the parties interact with each other. The creativity of the arbitrators will set the standard for the parties moving forward.
While a final decision is not the first thing that the parties think of, it is often a result of participating in the alternative dispute resolution process. In traditional litigation, the parties leave the decision between the cases up to the judge. While arbitration often does something similar, the award issued is often creative and helps the parties bridge the gap rather than choosing one over the other. A settlement agreement allows the parties to participate more fully in the determination of their dispute, but parties cannot enter a negotiation or mediation with an expectation of a final decision because any party can walk away at any time. A final decision may be possible in alternative dispute resolution and is often the result of an engagement with the process. Finding a way to decide a case helps all parties move forward with their lives and be free from the dispute.