Law Offices of
Bisno, Samberg & Mulvaney, LLP
21700 Oxnard Street, Suite 430
Woodland Hills, California 91367-3665
Tel: (818) 657-0300 - Fax: (818) 657-0313
www.bisnosam.com
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Trial/Mediation/Arbitration

TRIAL: The process of adjudication of a dispute between parties by attorneys before a judge sitting in a court of competent jurisdiction is generally referred to as a "trial". Even though the Seventh Amendment of the United States Constitution guarantees the right to a trial by jury in all disputes over $20.00, because of the cost of litigation, disputes involving less than $20,000.00 are usually tried before a judge sitting without a jury. In larger business cases, and in cases involving medical malpractice, grievous injury and wrongful death, the trial is generally held before a judge and jury.

Trials can occur in Federal Court (Federal questions or statutes, or cases involving diversity of citizenship and an amount in dispute over $50,000.00), State Court (most business cases, medical malpractice, real property, grievous injury and wrongful death) or Bankruptcy Court. Our office has handled cases in all of these courts.

The burden of proof is usually on the party that brings the case, the plaintiff, to prove every element of the causes of action sued upon. The proof must be presented in the form of competent evidence. The rules of evidence are very complex, and for that reason it is generally a good idea to be represented by an attorney.

Trials involve the resolution of disputed questions of fact and law. An example of a question of fact is whether driver A or driver B ran the red light. An example of a question of law is whether a particular witness be permitted to testify about information he or she obtained from a third party. Judges decide questions of law. Juries decide questions of fact. In cases without a jury, the judge decides both the questions of fact and the questions of law.

This is a very cursory overview of the trial process. If you have specific questions, or would like to discuss a particular situation, please call (818) 657-0300, fax (818) 657-0313, or e-mail Bisno, Samberg & Mulvaney with your questions.

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MEDIATION (ADR): The process of informal or "alternative dispute resolution" by the parties and their attorneys before a neutral mediator is referred to as "mediation" or "ADR". Mediation can be convened by stipulation of the parties, through the requirements of a contract, or by court order. Mediation is generally not binding on the parties, but rather, is an "off the record" meeting held in a good faith effort to resolve a dispute.

Since many business disputes follow similar patterns, and since litigation is very expensive, some business contracts provide that an effort to mediate must be made before a lawsuit can be filed. The parties retain attorneys who then decide on an acceptable mediator. The mediator is paid by the parties, generally in proportion to the number of parties. For example, if there are three parties, they will each pay one-third of the mediator's fee. Persons who serve as mediators are generally retired judges, or attorneys with experience in the area involved in the dispute (contracts, real estate, etc.).

Sometimes, once a lawsuit has been filed in court, the parties and attorneys will decide to place the expensive and time consuming trial process "on hold" and try to settle the case by mediation. If the mediation results in a settlement, the case is over. If the mediation is unsuccessful, the case picks up where it left off, and the case then goes to trial.

In most courts in California, before the court will give you a trial date, they will require you to go through a non-binding mediation or settlement conference. If the case does not settle it will then go to trial. At the trial, nothing that was said or done at the mediation or settlement conference can be discussed.

Generally, witnesses are not called at mediation, but frequently the parties will show the mediator the documents and other things they plan to use at trial if the case does not settle. Mediation is generally much less time consuming, and therefore less expensive, than trial. It is for that reason, that more and more disputes are being resolved through mediation.

This is a very cursory overview of the mediation process. If you have specific questions, or would like to discuss a particular situation, please call (818) 657-0300, fax (818) 657-0313, or e-mail Bisno, Samberg & Mulvaney with your questions.

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ARBITRATION: The process of adjudication of a dispute between parties by attorneys before a neutral judge or third party attorney is referred to as an "arbitration". Arbitrations can be convened by stipulation of the parties, through the requirements of a contract, or by court order. Arbitrations can be final and binding on the parties (usually by stipulation or by contract), or non-binding and advisory only (usually court ordered).

Since arbitration is generally less time consuming and less expensive than the litigation process, many business contracts provide that all disputes involving the parties to, or the subject matter of, the contract be resolved by arbitration. The parties retain attorneys who then decide on an acceptable arbitrator. The arbitrator is paid by the parties, generally in proportion to the number of parties. For example, if there are three parties, they will each pay one-third of the arbitrator's fee. Persons who serve as arbitrators are generally retired judges, or attorneys with experience in the area involved in the dispute (contracts, real estate, etc.).

Sometimes, once a lawsuit has been filed in court, the parties and attorneys will decide to forego the expensive and time consuming trial process in for of a binding arbitration. The parties and attorneys will then "stipulate" to binding arbitration.

In most courts in California, before the court will give you a trial date, they will require you to go through a non-binding advisory arbitration. If either side disagrees with the result, they can throw it out, and proceed to trial. At trial, neither the fact that an arbitration was held, or the results of that arbitration, can be discussed. Courts generally order the parties to go through non-binding arbitration because frequently a settlement is reached after the parties see how the neutral arbitrator rules on the case.

Generally, witnesses are called and exhibits are entered into evidence at the arbitration hearing in a manner similar to a formal trial. However, arbitration hearings are generally much less time consuming, and therefore less expensive, than a full blown trial. At the conclusion of the arbitration hearing, the arbitrator will issue an "award". The parties must abide by the award if the arbitration was binding, and if they do not, the other party can enforce the award as if it is a court judgment.

This is a very cursory overview of the arbitration process. If you have specific questions, or would like to discuss a particular situation, please call (818) 657-0300, fax (818) 657-0313, or e-mail Bisno, Samberg & Mulvaney with your questions.

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