Beyond Litigation and Mediation: Navigating Decisional Alternatives

Humans are inherently self-interested. These individual interests are often in conflict with the interests of others, and this dynamic gives rise to disputes. Methods for resolving these disputes have evolved in a generally benign direction over time, from head bashing to sword fighting to dueling to the modern mainstay: litigation. Yet even litigation is fraught with challenges. Legal battles can be lengthy, expensive, and unpredictable. Moreover, the appellate process can stretch disputes out for what feels like an eternity, leaving parties drained both financially and emotionally.

Over the last thirty years, mediation has emerged as a powerful alternative to traditional litigation. In mediation, a third-party neutral (the mediator) facilitates negotiation between disputing parties. This process is user-friendly, easily scheduled, and cost-effective. Unlike litigation, mediation empowers parties to craft their own solutions rather than rely on an imposed judicial decision. With an experienced and skilled mediator, settlements are highly likely, making mediation a widely accepted tool among lawyers and courts across the Mid-Atlantic region and the nation. Indeed, it is rare for a lawyer to try a case without first considering mediation.

Despite the many benefits of mediation, there remains a significant need for third-party decision-making in those disputes that simply cannot be settled voluntarily. Traditionally, courts have filled this role.  However, courts today are under immense pressure from increasing societal needs combined with limited funding and rising skepticism toward governmental institutions.  As a result, lawyers may want to consider decisional alternatives.

Arbitration is perhaps the most recognized and frequently used decisional alternative. It is a creature of contract between the disputing parties. The hearing can be scheduled quickly, and parties may select an arbitrator with specialized expertise relevant to the case.  Arbitration proceedings resemble a judicial trial but are typically more informal and streamlined. The decision (award) is rendered promptly, includes an explanation, and is binding with very limited grounds for appeal making it more “final” than a typical trial court decision.

Another option is the appointment of a Special Master by a federal court to handle any number of situations: discovery, the merits a segment of the larger dispute, or the merits of the entire dispute. The Special Master’s rulings are subject to review by the appointing federal court.  Similarly, in Virginia, a Circuit Court Judge may appoint a Judge Pro Tempore to decide a case or any part thereof.  The Judge Pro Tempore has the same powers and duties as a regularly sitting Circuit Court Judge, and their decisions are subject to appeal through the normal adjudicative process.

While mediation has become mainstream in assisting parties to resolve their disputes voluntarily, there remains the occasional need to retain a third-party decision maker to “bring down the gavel.”  Arbitration, Special Master, and Judge Pro Tempore processes allow the parties to choose a decision maker with specific subject matter expertise and calendar availability to meet the needs of the specific case.  As courts continue to face mounting pressures, prudent litigators may increasingly need to consider the full range of available decisional alternatives as they pursue the best outcome for their clients.

John A.C. Keith, Esq. is a co-founder of Blankingship & Keith, P.C. and an experienced mediator and arbitrator with The McCammon Group. With decades of experience and known for his skill in resolving complex disputes, John has served as a trusted neutral in a wide range of cases. Notably, John was appointed as a special master in a major class-action consumer case, demonstrating his exceptional ability to navigate intricate legal matters with impartiality and precision.