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The Anatomy of a Lawsuit: Part 5

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A Once a lawsuit has been filed, a process commences that will not end until the lawsuit is resolved in one of several different ways. The method of choice to resolve a lawsuit is through a process called alternative dispute resolution (ADR). This process involves 2 main approaches: mediation of the dispute and arbitration.

Mediation is a method in which a third party intervenes and assists the disputing parties to come to a joint resolution. The mediator will use methods that encourage the disputing parties to communicate with each other and listen to the other party’s point of view so a win-win situation is produced as a final resolution. Many mediators have legal training. However, legal training is not mandatory to conduct a mediation. An individual who is knowledgeable about the area of dispute can be equally qualified to act as a mediator. Mediation is the least adversarial method of resolving a dispute.

Another ADR approach is arbitration. Arbitration is an informal proceeding in which an arbitrator (normally a lawyer or judge) listens to both sides of the dispute, then renders a decision, called an arbitrator’s award. Two types of arbitration are used. The first is called arbitration by contract. Arbitration by contract is simply an arbitration agreement in which the parties decide to resolve any disputes through the arbitration process. When a contract for arbitration is present, the arbitrator’s award is permanent, binding, and not appealable; that is, an individual does not have access to a court or jury trial. The entire arbitration proceeding takes place before any filing of a lawsuit and once an arbitrator’s award is granted, that award stands. Arbitration contracts are often found in union contracts or in employment handbooks. Important to note is that an arbitration proceeding done under this type of arbitration removes the ability to file a lawsuit in a court of law.

In contrast to an arbitration contract, the second method of arbitration is called judicial arbitration. In this method, a lawsuit has been filed and is moving through the litigation process. Before trial, the court or the parties will agree to judicial arbitration in an attempt to resolve the litigation without going to trial. The arbitrator (or a panel of arbitrators) will again listen to both sides of the dispute, then render an arbitrator’s award. A judicial arbitration is non-binding and can be appealed if one of the parties is unhappy with the arbitrator’s award. If an appeal is made, the case returns to the litigation process and moves forward to trial.

The most common way of resolving a lawsuit is through settlement. The majority of cases are settled for a variety of different reasons. A case can be settled at any time during the litigation process, even up to the time it goes to trial or even during trial.

The final way of resolving a lawsuit is through a trial. This is the last effort to resolve a dispute and is difficult for both plaintiffs and defendants. Any nurse who has been involved in a lawsuit knows that testifying as a defendant or a witness is a nerve-wracking, anxiety-producing event. A trial is the height of psychological and emotional impact. Once a case goes to a jury, it is up to the jury to render a verdict. Unfortunately, not all juries resolve a case based on the law and the facts. Many times, a jury verdict is based on the credibility of witnesses, or the courtroom style of a lawyer.

However a case is resolved, it is with a sigh of relief that it is all over. A lawsuit takes a great measure of time and energy from anyone involved. That is why understanding how to avoid lawsuits is an important part of any nurse’s education.

Information appearing in Legal Counsel is for general purposes and is not intended to replace legal advice. For specific situations, consult your facility’s legal representation or a personal attorney.

 

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