ABA Family Legal Guide

How the Legal System Works

Mediation and Small-Claims Court

Resolving Your Dispute out of Court

What are my options if I want to resolve my civil case without proceeding to trial?

You have several options.

Negotiation

The lawyers in the case can meet and negotiate a settlement. If you don't have a lawyer, you should talk to the person with whom you have a dispute. Stay calm and reasonable. You may find that if approached politely, your opponent will be willing to settle on a mutually acceptable basis. Make certain that the other person understands why you are unhappy and what you would consider a reasonable solution to the problem. Keep an open mind and listen to his or her side of the story. Making an effort to settle a dispute without a lawsuit is never a waste of time. In addition, many states require that a party first make a demand for payment or action before filing some types of lawsuits.

If you do reach a satisfactory compromise, ask your lawyer to get it in writing for both parties to sign--you will both want to make certain what you are and are not agreeing to and what, if any, issues still need to be resolved. Even if you and the other person involved are able to work out the main problem, it still may be necessary to appear before a judge if a lawsuit has been commenced. Your court appearance will be made easier if the agreement is in writing and can be submitted to the judge.

Mediation or Arbitration

If your attempts to negotiate a settlement are unsuccessful, you may want to try to resolve the dispute through mediation or arbitration.

In mediation, a trained mediator will help you and your opponent resolve your disagreement by identifying, defining, and discussing the things about which you disagree, in an effort to help you reach a mutual agreement. This is an informal, cooperative problem-solving process, and does not necessarily require you to know the law or to hire a lawyer, although often the parties find it useful to do so.

Arbitration, on the other hand, is a more formal proceeding in which you and your opponent will be asked to present evidence and witnesses to an arbitrator, who will issue a decision, usually in writing, to resolve the dispute. Arbitration may be binding or nonbinding. If the parties agree to a binding arbitration, it means they must accept the arbitrator's decision as final; if they agree to a nonbinding arbitration, it means the parties retain the right to go to court.

Send a Demand Letter

If negotiation and mediation have failed but you are still keen to avoid a trial, then the next step is to ask your lawyer to write a carefully thought-out letter to the person with whom you have a disagreement. This is called a demand letter, and should include an accurate summary of the history of the problem and a date by which you would like a response or settlement. This type of "settle-or-else" letter has many advantages. It helps you organize the facts and your thoughts logically. Your lawyer may be able to express your thoughts in a way that the other person might not have heard when you were talking to each other directly. It may be just the push needed to get the other person to settle. If the letter sets reasonable time limits, it will often help to encourage settlement.

Settlement During Trial

In the event that all of your attempts to settle before trial are unsuccessful, you may find yourself preparing for litigation. This does not mean that it is no longer possible to settle your matter. It is often the case that as parties prepare their evidence and marshal their resources for trial, they become more interested in settling. In many cases, the judge will order the parties to participate in settlement conferences, mediation, or arbitration. A party may make an offer to settle before the trial begins; during the trial; or after the trial, up until the moment that the jury returns with the verdict.