The New Trend in Civil Case Settlements: Alternative Dispute Resolution
By: Tracey McGurk
Over the last eight years, the total number of new civil cases filed in the State of Ohio has declined. The percentage of civil cases actually proceeding to trial have steadily decreased over that time period as well. While the focus used to be on getting “your day in court,” – in other words, a trial in front of a jury – businesses, insurance carriers, and the courts themselves appear to have switched their focus to the economics of effectively resolving cases. And the numbers don’t lie: The trial rate for civil cases heard in the Common Pleas, General Division Courts, in 2016, was only 1%.
There is a growing preference towards alternative dispute resolution (ADR). Parties involved in the dispute often prefer mediation and other ADR methods, because they simply do not have the time or financial resources to fight a claim for a long-term period. They need a timely resolution of the matter to return their attention to the daily needs of their businesses. Insurers also prefer ADR methods, as they typically are more cost-effective than litigation. And judges will encourage mediation or other ADR methods to resolve cases more quickly, because it frees a bit of space on their already-crowded dockets.
The rising cost of litigation – namely, the increasing cost of discovery – is a key contributing factor to the move in favor of ADR. Electronic discovery, or E-discovery, is particularly expensive, because it regularly involves queries into large databases of information. What may have been one or two files of written correspondence 15 years ago could now be thousands of e-mails that have to be obtained, reviewed, and organized. Another driver of rising litigation costs, particularly in civil disputes, is the increased complexity of cases involving science and technology. It is difficult and expensive to get a jury to understand the complex nature of these disputes, and may require the use of costly experts to testify. Increasingly, companies evaluate lawyers or paralegals not merely on lawsuits won or lost but also on disputes avoided, costs saved, and the crafting of solutions that preserve and maintain existing relationships.
While pursuing ADR frequently has cost benefits, there is a downside to the decrease in caseloads and civil jury trials. Resolving disputes through mediation or other forms of ADR does not leave behind any type of public record. This could lead to less judicial guidance and greater uncertainty in the legal system, as case precedent or written opinions on certain questions of law may be minimal.
It remains to be seen whether civil case filings and jury trials in Ohio will see an uptick in the future, but one thing is certain: At the outset of a dispute, evaluating all of the options that may exist for resolution is always recommended.