Tort law is one of the major divisions of the law. A "tort" is a civil wrong, as distinguished from a crime. A crime is a public wrong. The law of torts is governed mainly by common law principles. Lawsuits based on tort make up a significant portion of the caseloads in our courts.
A tort is the breach of a legal duty which causes some kind of compensable injury or loss to person, property, or rights.
In general, four elements must coincide for an act or omission to constitute a tort on which a lawsuit can be based. These elements are: (1) a legal duty owed by one person to another; (2) violation of the duty; (3) injury or loss to the plaintiff; (4) the violation of the duty is the proximate cause of the injury or loss.
The first requirement for a tort is the presence of a legal duty owed by one person to another. The nature and scope of these duties are defined mainly by case law. The case law (common law) represents the accumulated experience of the years in describing conduct which is acceptable or unacceptable to society. An example of a duty which is important in many lawsuits is the broad rule that a person must act with reasonable regard for the safety of others. The scope of any duty may vary according to the relationship of the parties, and may also vary according to the circumstances.
The second requirement for a tort is the breach of a legal duty. Normally, the issue of whether a legal duty exists is a question of law and the issue of whether the duty has been violated is a question of fact. The judge decides whether the law imposes a duty, but the jury decides whether or not the defendant breached the duty.
The third requirement for a tort is injury or loss suffered by the plaintiff. The injury or loss may be a physical injury, injury to property, or injury to (or loss of) a valuable right or interest. In the absence of injury or loss, violation of a legal duty is a “wrong without harm” or “damnum absque injuria.” Moreover, the injury or loss must be significant enough to warrant the court’s time and trouble in providing and enforcing a remedy. This last concept is restated in the maxim, “de minimis non curat lex”, which literally means “the law does not cure trifles.”
The fourth requirement for a tort is that the defendant’s breach of duty is a proximate cause of injury or loss to the plaintiff. Legally, an act or omission is a proximate cause of an event if the act or omission is a substantial factor in bringing about the event.
The criminal law and the law of torts both deal with conduct which is considered socially unacceptable. A crime is a wrong against the public interest for which the remedy is a criminal penalty inflicted in a prosecution brought in the name of the state. A tort is a private wrong for which the remedy is money compensation awarded in a lawsuit brought by the injured person.
It is possible for an act or omission to be both a crime and a tort. A crime which has a victim is also a tort. Even if an act or omission is both a crime and a tort, the criminal and civil proceedings are entirely separate. A person who causes an auto accident by carelessly running a red light may be prosecuted in a criminal action by the state for the traffic violation. If the victim of the accident wishes to recover compensation for her injuries, in most cases she must file a civil lawsuit on her own behalf. However, in some cases, where a crime is involved causing her damage, restitution may be ordered against the perpetrator. The crime and the tort have different elements and criteria for liability. The tort affects the individual but does not affect the peace and safety of the state. The individual suffering injury or loss is the plaintiff in the civil action. The state is the plaintiff in the criminal action.
Most lawsuits in tort are based on negligence and the greatest number of negligent actions arise from traffic accidents.
"Negligence" is conduct which falls short of a standard established by the common law for protecting others from unreasonable risks. In a suit based on negligence, the basic elements of the tort may be expressed as: (1) a legal duty to exercise due care under the circumstances; (2) negligence, or the failure to exercise the degree of care required; (3) injury or loss; and (4) the negligence was the proximate cause of the injury or loss.
Normally, "due care" is that degree of care which a hypothetical "reasonably prudent person" would employ under circumstances similar to those in the case being tried. The jury is required to measure the defendant's conduct against the community standard of reasonable behavior. The reasonably prudent person standard is not always used. The conduct of the very old and the very young must be judged according to what would be reasonable to expect of persons of similar age, intelligence, capacity, and experience. The conduct of persons having, or professing to have, special skills or knowledge is judged according to the conduct of others with similar skills or knowledge. The conduct of persons acting in emergencies is judged according to what would be reasonable to expect of others under similar conditions.
Normally, negligence is proved by facts which show that: (1) as a matter of law, the defendant owed the plaintiff the duty to exercise due care; and (2) the defendant failed to live up to that standard of care. In certain cases, the proof of negligence may be aided by the rule of “res ipsa loquitur” or the rule of “negligence per se.”
Res ipsa loquitur literally means “things which speak for themselves.” This rule is applied to cases in which negligence cannot be proved by ordinary means because the thing causing the injury was entirely under the defendant’s control, but the injury can be explained only by negligence. For example, the doctrine is often applied in food poisoning cases where the canning process is entirely under defendant canner’s control and the usual methods of investigation and evidence cannot show that the particular can of food involved was improperly processed. The fact that the food was impure can be explained only by the canner’s negligence. That is, the impure food speaks for itself.
Negligence per se means that the action itself constitutes negligence. If it can be shown that the defendant violated a specific safety statute, then the violation is negligence in and of itself or negligence per se. This rule also bypasses the first step in a negligence case-the necessity for establishing the existence of a legal duty. The statute itself establishes the duty. Negligence per se is often a factor in auto accident cases. Many traffic laws are safety statutes whose violation constitutes negligence per se.
The vehicular accident case is the most common negligence action. The gist of such an action is usually that the defendant failed to exercise due care in operating a motor vehicle.
Malpractice suits are becoming increasingly common. These are suits against a doctor, lawyer, dentist, or other professional person based on alleged negligence in the practice of her profession. The time for commencing a suit against a professional person varies according to the profession and the time the malpractice is discovered. Persons having this type of claim must be careful to file the claim on time. The statute of limitations is one year for some or two or more for others. Whether the action is for malpractice or simple negligence must be considered.
Negligence suits against persons who own or occupy property are not uncommon. A few examples of conditions which might cause injury and lead to liability are: a roller skate in the driveway, a broken porch step, cracked or sunken sidewalk pavement, litter on which a person might skid or trip, and various fire hazards.
Negligence is the best-known theory of liability that is used in tort law. Other theories of liability in tort include, for example, intentional interference with persons, misuse of legal process, defamation, invasion of privacy, intentional interference with property, nuisance, and strict liability. Some of these theories are discussed below.
Torts in this category include, for example, are assault, battery, false arrest, and false imprisonment. Assault is threatening violence, and battery is actual physical violence. If a person tries to hit another person, it is an assault whether or not he hits the other person. If he hits the other person, it is battery. Assault alone may be enough to give rise to a cause of action
False arrest and false imprisonment are essentially the same. Both involve unlawful detention of the plaintiff which the defendant knows, or should know, is unlawful.
A person who, without probable cause, spitefully institutes criminal or civil proceedings against another may be liable in an action for malicious prosecution. A similar action is the abuse of process, in which the defendant has a warrant, summons, or subpoena issued for an improper purpose. Also, a person who frivolously or habitually starts legal proceedings may be sanctioned by the court, or in the case of habitual or vexatious litigation may be prohibited from starting new cases. Other sanctions include fines and payment of the other person’s attorney fees.
Defamation is a false or derogatory statement about another. It may be libel (which is written) or slander (which is spoken). The injury in libel or slander is an injury to reputation, including: character, morals, ability, business practices, or financial status. Common, malicious gossip may be sufficiently defamatory to justify liability for slander or libel.
The law recognizes some intrusions upon privacy as so outrageous that they warrant liability in a tort action. Examples include serious invasions of a person's solitude, publishing her name, picture, or private information about her, or using her personality for commercial purposes.
The most common tort of this type is trespass. Usually, trespass is thought of as an intrusion on real property (land or buildings), but it can also involve personal property. For example, tampering with another's car is a species of trespass. Another example is conversion. In conversion, a person assumes control of property belonging to another for his own use or benefit, such as pawning someone else's watch.
Broadly speaking, a nuisance is a condition which interferes with the use or enjoyment of land by another. There are two types: public nuisance and private nuisance. Typical examples of public nuisances are the maintenance of a brothel, or the operation of gambling den or crack house. Private nuisances usually deal with some type of pollution or the maintenance of some type of offensive or dangerous condition. In recent years, statutes involving health, safety, and environmental protection have preempted certain common law tort actions.
Interference with a contract by a person who is not a party to the contract may give rise to tort liability. Such interference might include inducing someone to repudiate her contract with another or interfering with performance of the agreement. A similar type of lawsuit involves improper interference with prospective business relations where there is no actual contract. These lawsuits are usually based on some form of unfair competition.
In a few cases, a person may be held liable for loss or injury even though he did not act intentionally, recklessly, or even negligently. These cases are generally limited to those in which the injury is caused by some especially dangerous substance or agency under the defendant's control. The substance or agency can be impounded water, explosives, poison, or radioactive substances, etc. In addition, strict liability is applied in products liability cases where plaintiff's injury is the alleged result of a defect in a product. Some examples of situations which may give rise to strict liability are: a food or beverage which makes the user violently ill, a home permanent which causes the user's hair to fall out, an underarm deodorant which causes an acute allergic reaction, and the failure of a car's improperly designed steering system which causes a wreck.
The success of an action based on strict liability for product design and use depends on the evaluation of many factors, including, for example: whether the product was defective in manufacture or construction, was defective in design or formulation, was defective due to inadequate warning or instruction, or was defective because it did not conform to a representation made by the manufacturer.
If a person drives or owns a car, he may at some time be involved in an accident, which may involve him in a lawsuit. Ohio law requires proof of the ability to pay for the damages caused by the operator of a motor vehicle. Even without this requirement, common sense demands that all automobiles be insured. Ohio law also requires drivers to stop and give certain information and to file an accident report. In addition, there are things not required by law but which are advisable for a driver to do (or avoid) after an accident.
Under the Ohio Financial Responsibility Law, all persons seeking an operator's license or seeking to register a motor vehicle (obtain license plates) must sign a statement that they will not operate any motor vehicle in Ohio unless the vehicle is covered by a legally acceptable method of providing compensation to accident victims. In addition, any person whose driver's license is suspended or who is put on probation must file proof of financial responsibility, that is, proof he can compensate persons who may suffer personal injury or property damage as a result of a traffic offense.
Persons charged with certain traffic offenses are required to appear personally in court. In addition, the officer issuing the traffic ticket may determine that a personal appearance in court is required. Persons who must appear personally in court will know of this obligation because the charging officer will tell them and will check the "personal appearance required" block of the ticket which the person receives.
The law provides for the filing of a special accident report to verify insurance coverage in situations where a traffic accident results in death, personal injury, or damage in excess of $400 to the property of any person. See Financial Responsibility Accident Report below.
It must be noted that the ultimate guilt or innocence of persons who are required to appear at court or who are required to file accident reports is irrelevant. Regardless of guilt or innocence, these persons must provide proof of financial responsibility. Under the Ohio Financial Responsibility Law, they must show that at the time of the offense or accident their vehicle was covered by a legally acceptable method of providing compensation to those who may have been injured by its operation.
An operator or owner of a motor vehicle who does not provide proof of financial responsibility, or provides insufficient proof, faces the suspension of his operator's license, impoundment of registration and license plates, court costs, and additional fees.
While the law allows other methods of providing financial responsibility, the usual proof of financial responsibility is a valid insurance policy with liability coverage. The coverage must be at least: $12,500 for personal injury or death of one person in any one accident; $25,000 for personal injury or death of two or more persons in any one accident; and $7,500 for damage to the property of others.
The possibility of a lawsuit is an independent reason for adequate insurance coverage. Even if a person could shrug off the loss of driving privileges and the penalties of the financial responsibility law, the costs of a lawsuit and the possibility of paying a large judgment cannot be easily dismissed.
In some states, insurance is an absolute requirement. In these states, a car registration or operator's license will not be issued unless the applicant shows that he has at least a minimum amount of insurance.
The law requires a driver involved in an accident to stop immediately, remain at the scene, and give his name and address and the registration number of his vehicle. If he is not the owner, he must also give the name and address of the vehicle's owner. He must give this information to the driver or person in charge of a damaged vehicle, to anyone injured in the accident, or to a police officer. If an injured person cannot understand or take down the information, the other driver must notify the police and wait until they arrive at the scene, unless he himself is removed from the scene by an ambulance or another emergency vehicle.
If an accident occurs on public or private property other than a public road, the driver must stop. The driver is required to give his name, address, vehicle registration number, and the owner's name and address, and to show his operator's license only on request. (The request may be made by anyone at the scene.) He is also required to show his operator's license on request. If the driver does not give the information at the time he stops, he must report the information to the local law enforcement authorities within 24 hours after the accident.
If an accident causes damage to land, or to property attached to the land (such as a building, mailbox, or utility pole), the driver must stop and take reasonable steps to locate the owner or person in charge of the property. If he locates the owner or person in charge, he must give his name, address, vehicle registration number, and the vehicle owner's name and address. He must show his operator's license on request. If he cannot locate the proper person, he must give the required information to local law enforcement authorities within 24 hours.
If a person hits an unattended vehicle, he must leave a written note which gives his name, address, vehicle registration number, and the name and address of the owner of the vehicle he was driving. This note must be fastened to the damaged vehicle in a conspicuous place. The usual place to "fasten" the note is under the windshield wiper.
"Hit-skip" is a serious offense. A person who leaves the scene of an accident or fails to give the required information is liable for a fine of up to $1,000, or a jail term of up to six months, or both. Further, leaving the scene invites a lawsuit, and may be used as evidence against the hit-skip driver because fleeing may amount to an admission of fault.
Drivers involved in Ohio motor vehicle crashes resulting in injury or death, or causing property damage over $400, now have the option of filing a Financial Responsibility Accident Report (Form 3303) with the Bureau of Motor Vehicles (BMV). (Prior to 1997, state law required all drivers to file these reports - which are not the same as the accident report a police officer fills out at an accident scene.) The purpose of the BMV report form is to verify that all parties were covered by liability insurance at the time of the accident. When both parties to accidents carry liability insurance, filing such a report is usually unnecessary. If, however, a motorist is involved in an accident and has reason to believe the other party was not insured at the time of the accident, that motorist has six months to file an accident report form and to allege the other party was not financially responsible. The other party is then contacted by the BMV for proof of financial responsibility. If the party cannot prove she was covered by liability insurance at the time of the accident, she can be forced to post a bond or security deposit with the BMV or lose her driver's license and vehicle registration. Blank Financial Responsibility Accident Report forms are available directly from the Bureau of Motor Vehicles and through insurance companies and independent agents.
There are some things a driver involved in an accident should and should not do, even though they are not legal requirements. Following these suggestions can be advantageous in a criminal prosecution for a traffic violation, and can be helpful if the driver decides to bring-or must defend-a lawsuit.
Generally, a driver should not move his car until the police arrive. The car should be moved if it is a traffic hazard and might be involved in another accident. If possible, the driver should try to warn other drivers of any danger. It is a good idea to carry flares, reflectors, or warning lights.
The driver should get the names and addresses of the other drivers and their insurance carriers, as well as the names of all passengers (even though apparently uninjured), and the names and addresses of all persons who may be witnesses. If it is not possible to get all of the above information, the driver should at least get license numbers.
The driver should take notes concerning the accident and its circumstances. For example, the driver should take notes of all statements, and make a sketch of the scene. The sketch should include: the positions of the cars before, at, and immediately after the accident; the location of skid marks and debris (pieces of chrome, broken glass, dirt shaken from the underside of the car, etc.); and the physical features of the scene. If a camera is available, the driver should take pictures of the scene and make notes about the location of the camera in relation to the subject of each picture.
If anyone is seriously injured, he or she should be made comfortable. The injured person should not be moved unless there is an emergency, although obviously, an injured person must be moved from a position of peril. Medical aid should be summoned at once. Untrained persons should not attempt to give first aid unless the need is clear; for example, the victim is bleeding to death, is in deep shock, or has stopped breathing.
The driver should report the accident to his insurance company immediately. Most insurance policies require such a report, and delay can jeopardize coverage. In addition, the insurance company's personnel can help protect the driver's interests.
In the event that an accident results in a personal injury, the driver, and any person who sustained personal injuries or property damage in the accident, should contact an attorney. No payments should be made to anyone without legal advice. No offer of settlement of a claim should be accepted without legal advice.
Under certain circumstances, a person may be responsible for the acts or omissions of others. An employer may be responsible for his employees, and parents may be responsible for their children.
An employer is responsible for the acts or omissions of her employees or agents when the employees or agents are actually working for the employer. (The law uses the phrase “acting in the course and scope of employment.”) For example, if a worker negligently allows debris to fall from a construction project and a passer-by is injured, the construction company can be held liable for the damages. Similarly, a principal is responsible for the acts or omissions of her agents when the agents are actually working for the principal. (A principal is a person who retains control while another acts for her, or in her name.) Liability in these cases is based on the doctrine of “respondeat superior”, which literally means “the master must answer.”
A problem which often arises in respondeat superior cases is whether the person guilty of the act or omission was actually an agent or employee; or an independent contractor. A key question is the degree of control exercised over the worker (the agent or employee) by the person who hired the worker. If the person who hired the worker retains only minimal control over the worker, the worker is probably an independent contractor. Under the law, a person who hires an independent contractor is not automatically responsible for the negligent actions of such a person. An independent contractor normally has his own tools and equipment, works with minimal supervision, and contracts to complete particular tasks. For example, a building contractor enters into an agreement with a plumber to do all the plumbing work on a house pursuant to a set of plans and specifications. They agree on money and the time the job will be completed. Based on these facts, the plumber probably is an independent contractor. If the plumber is an independent contractor, the building contractor is not automatically responsible for the negligent acts or omissions of the plumber.
With some exceptions, a parent or guardian is responsible for the act or omission of his child only if he knows of the child's tendency to commit the act complained of, and fails to take reasonable steps to control him. In Ohio, there is statutory liability in certain situations. A parent is strictly liable up to $10,000 for damages caused by a child under the age of eighteen if the child willfully and maliciously assaults a person by a means or force likely to produce great bodily harm. Under another statute, a parent is liable up to $10,000 for injury or loss to a person and property as the result of his child's act of vandalism, desecration, or ethnic intimidation.
In Ohio, when a minor (a person under 18) applies for an operator's license for a motor vehicle, the application must be signed by the minor's parent, guardian, or another adult willing to be responsible for the minor. The person signing the application is liable for damages resulting from the minor's negligence, recklessness, or willful misconduct while driving an automobile.
"Contributory negligence" and "assumption of risk" are common defenses in negligence actions. The defenses are very similar. Contributory negligence applies where a plaintiff's negligence causes some of the plaintiff's injury. Assumption of risk applies where the plaintiff knows, or should have known, of a danger and subjects herself to such danger. Historically, contributory negligence and assumption of risk were absolute or complete defenses. If it could be proven that the plaintiff's negligence-no matter how slight-had caused the plaintiff's injury, or that the plaintiff had subjected herself to a danger which was known or should have been known, the plaintiff could not recover even though the defendant was negligent. Contributory negligence and implied assumption of risk no longer are absolute or complete defenses.
Contributory negligence, assumption of risk, and comparative negligence are not defenses in workers' compensation claims (that is, claims by employees against the workers' compensation fund administered by the State of Ohio to pay employees who are injured while at work).
Ohio adopted the doctrine of comparative negligence in 1980. Because assumption of risk and contributory negligence are very similar defenses, Ohio courts have held that assumption of risk is part of the doctrine of comparative negligence.
Under comparative negligence, a plaintiff is barred from recovering damages only if the degree of the plaintiff's negligence is greater than the negligence of the defendant (or the combined negligence of all defendants). If the plaintiff's negligence is equal to or less than that of the defendant, the plaintiff's damages will be proportionately reduced but the plaintiff will not be barred from recovering. Also, where there is more than one defendant, the damages awarded will be apportioned among them according to their respective degrees of negligence.
The best way to explain the operation of comparative negligence is by example. Suppose that a three-car accident in which one driver was injured was caused by some degree of negligence on the part of all three drivers. If the injured driver's own negligence was 51 percent or more of the cause for his injuries, he cannot recover damages at all. If his contributory negligence was 50 percent or less of the total negligence, he can recover damages but they will be reduced in proportion to his own negligence. Thus, if the jury finds that the injured driver's damages amount to $100,000 but that he was half (50 percent) to blame for the accident, he can recover only $50,000, that is, $100,000 less 50 percent. If the jury finds that he was only 10 percent to blame, he can recover $90,000, that is, $100,000 less 10 percent. The defendants would be liable only for the part of the award attributable to their own negligence.
If the jury determined that the total damages were $100,000 but that the plaintiff's negligence caused 10 percent of the total damages, the jury would continue its deliberations. It might determine that the first defendant's negligence caused 50 percent of the total damages and that the second defendant's negligence caused 40 percent of the total damages. The results would be: the plaintiff's own negligence reduced the award from $100,000 to $90,000; the second defendant is responsible for 50 percent of the total damages or $50,000; and the third defendant is responsible for 40 percent of the total damages or $40,000.
Not all kinds of assumption of risk have been merged with comparative negligence. Assumption of risk is still available as a defense where a prospective plaintiff expressly agrees or contracts with a prospective defendant to relieve such defendant of liability for negligence (express assumption of risk), and where the facts show that the defendant did not owe the plaintiff a duty (primary or no-duty assumption of risk).
Express assumption of risk is rare. Parties seldom agree in advance that one party will assume the risk of the other's negligence. However, such agreements may be made and may be enforced by the courts if the parties have equal bargaining power and the agreement does not violate other laws.
The best way to explain primary or no-duty assumption of risk is by example. The injury of a baseball spectator by a foul ball is a classic example. A person injured by a foul ball while sitting in the stands behind third base would have great difficulty in successfully asserting that comparative negligence applied to such case, that is, the victim's assumption of risk or negligence should be compared with the baseball team's negligence. Being struck by a foul ball in an unscreened portion of the stands is an obvious danger or hazard. The plaintiff could have chosen a seat which was protected by a screen or which was located in a different and perhaps less dangerous or hazardous area. Further, and perhaps most important in this situation, the defendant had no duty to provide screened areas for all spectators.
Some of the defenses in tort actions which are not based on negligence are listed below. In torts based on intentional interference with persons or property, some of the more common defenses include: that the defendant's conduct was privileged in some way, or that the plaintiff consented to it, or that the defendant was defending herself or her property, or that she was driven by necessity. In defamation cases, truth is an absolute defense. An invasion of privacy may be excused if it is to gather news or is required in the public interest. Specialized defenses are also available in other types of torts.
Monetary damage is the basic remedy that courts give in tort cases. Generally, damages are awarded to "make the plaintiff whole," or to compensate her for the loss or injury she has suffered. Damages of this sort may include reimbursement for actual out-of-pocket expenses, such as hospital and doctor bills, repair bills, and lost wages. In addition, compensatory damages may include compensation for pain and suffering, and mental anguish. If an injury is permanent, the jury may include damages for disability, loss of future earning power, and similar losses.
"Punitive damages" are also called "exemplary damages," and their purpose is to punish or make an example of the defendant for particularly outrageous conduct. Punitive damages can be likened to a fine in a criminal case, except that the plaintiff, and not the state, collects the money. In general, punitive damages can be assessed in certain intentional torts, such as assault or defamation, and in negligence cases where actions or omissions of that defendant demonstrate malice, aggravated or egregious fraud, or insult.
Many causes of action (the right to make a claim) have been created by statute. For example, the violation of certain antitrust, environmental, health, or labor laws creates a civil cause of action. Sexual harassment and the discriminatory treatment of the disabled are mentioned below because of recent widespread media attention.
A claim of sexual harassment may be brought under Title VII of the Civil Rights Act of 1964, and Ohio's Civil Rights Act. In 1980, the Equal Employment Opportunity Commission (EEOC) issued guidelines defining sexual harassment as a form of sex discrimination. A plaintiff may recover under two theories: (1) "quid pro quo"; and (2) "hostile environment."
Under the quid pro quo theory, the plaintiff must prove that a job benefit was promised in exchange for sexual favors, or that the plaintiff was asked to accommodate sexual demands to protect job security and advancement. Under the hostile environment theory, the plaintiff must prove that the sexual innuendo was pervasive and to the detriment of the plaintiff's psychological well-being. Under both theories, the conduct must be unwelcome, generally repetitive, and unchecked by those in authority.
The Americans With Disabilities Act (ADA) was enacted in 1990. Since July 1994, the act has covered all employers with at least 15 employees. ADA prohibits discrimination against a qualified individual with a disability in all aspects of the employment relationship. (Under the ADA, a "disability" is a physical or mental impairment that substantially limits one or more major life activities, and a "qualified individual" is a person who can perform the essential functions of a job with reasonable accommodation.) Disability must be determined not by stereotype but on a case-by-case basis. The qualified applicant or employee's status or advancement cannot be restricted if, with reasonable accommodation, the applicant or employee can perform the essential functions of the job. The thrust of the legislation is to provide qualified disabled persons an equal opportunity to obtain employment, job satisfaction, economic security, and self-esteem, while avoiding undue economic hardship to employers.
“Alternative dispute resolution” is a phrase used to describe the development and use of various methods or techniques to settle the conflict. As used here, the phrase stresses the use of methods or techniques as alternatives to, or substitutes for, traditional litigation. Alternative dispute resolution can offer viable substitutes to the expense and stress of litigation. Various methods or techniques can be employed, depending upon the nature of the dispute. Examples are negotiation, mediation, arbitration, mini-trials, and summary jury trials. “Alternative Dispute Resolution” is also discussed in Part III at “Pretrial Conference.”
Negotiation is generally part of all attempts at conciliation or settlement. Each attorney represents her client’s interests in discussions, offers, and counteroffers with opposing counsel. The client may or may not be present, but the client’s concerns and the desired resolution of the question must be considered and advanced. Based on her experience and evaluation of the case, the attorney should counsel the client on what a reasonable outcome might be.
Mediation requires the use of a neutral third party who guides the parties through the contested issues, while allowing each side to focus on and define its true interests. A mediator is a facilitator and not a judge. The mediator’s responsibility is to maintain a calm, non-threatening environment which promotes agreement and commitment. A mediator does not force the parties to relinquish their basic concerns, but helps both sides create a workable solution.
Arbitration also requires a neutral third party (an arbitrator). The arbitrator hears all or selected issues in controversy and, depending upon the rules established by the parties, renders an opinion which may or may not be binding. The arbitrator does not need to follow prior law, but is free to fashion a solution especially suited to the particular disputants.
Mini-trials and summary jury trials are recent alternatives to traditional trials. In the mini-trial, attorneys for the parties submit a shortened version of the dispute to a panel of representatives the parties have selected. The panel usually consists of high-level executives who can implement the agreed terms. Following the presentation by both sides, a neutral third party encourages discussion among the representatives and the attorneys and then renders a non-binding solution based on the possible outcome if the case actually had been tried.
In a summary jury trial, the lawyers argue shortened versions of their cases to real jurors without the restriction of the formal rules of evidence. Based on their evaluation of the factual issues, the jurors render a non-binding verdict and share the reasons supporting their conclusions. This sharing provides valuable insight for the parties; it can redefine their expectations and encourage them to resolve the controversy before trial.
Disclaimer: Articles appearing on this website are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
Reprinted and distributed by Fanger & Associates LLC with permission from the Ohio State Bar Foundation as a service to our clients and friends. Excerpted from The Law And You, A Handbook of General and Everyday Law Affecting Ohio Citizens. Prepared for the Ohio State Bar Association by the Ohio State Bar Foundation. Copyright © 1997-1999 Ohio State Bar Association. All rights reserved.