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Represent Yourself in Court: If You Don't Go to Trial

by Paul Bergman and Sara Berman-Barrett
Copyright © 1993 Nolo Press

Over 90% of all lawsuits filed are resolved without trial. If you can arrive at a fair resolution with your adversary without going to trial, you can save time and money.

Here are the typical non-trial situations.

Hearings: A Little Less Sticky

Depending on what kind of dispute in which you're involved, you may find yourself in a hearing rather than a trial. For example, you'll probably have a hearing if you are seeking an increase or a decrease in spousal or child support following your divorce, or you need to prove how much money you are entitled to after a defendant has failed to answer your complaint.

A court hearing is usually a short and narrowly defined proceeding in which you are not entitled to a jury. A judge conducts the hearing and makes a ruling. The other person in the dispute may not even be present in court. However, many of the courtroom procedures and rules of evidence are exactly the same in a hearing as in a trial. And you still must offer evidence in a way that persuades the judge or hearing officer to rule in your favor.

Arbitration: Another Trial Alternative

Arbitration is an alternative to trial that is often perceived as quicker and less costly than trial. In arbitration, a privately agreed-to arbitrator, not a judge, rules on the case. There is no jury, procedures are more informal and the arbitrator is not strictly bound by rules of evidence. Arbitrators generally charge by either the full or half day; you and your adversary split the arbitrator's fee.

If you have a legal dispute, you may well find yourself involved in an arbitration rather than a trial. One reason is that in many states, judges have the power in certain kinds of cases to order you and your adversary to arbitrate a dispute. A second reason is that even though you didn't realize it, you may have signed an agreement that provides for binding arbitration of all disputes arising under the agreement. For example, if you are a condominium owner who has made a complaint against your condominium association for unreasonably restricting your right to remodel your unit, the condominium association's set of rules to which you agreed may set out that all such disputes must be arbitrated.

Arbitration proceedings are similar to trials, but generally more informal. As in a trial, you and your adversary present evidence to the arbitrator through your own testimony and the testimony of witnesses. Like a judge, an arbitrator evaluates the credibility and legal significance of evidence to decide whether you win or lose.

Also, because most arbitrators are lawyers, their actions during a hearing tend to be strongly influenced by their legal training. The rules and procedures they follow generally closely resemble those used by judges in trials.

Mediation: Trying to See Eye-to-Eye

Another popular method of resolving disputes outside of court is mediation, which is generally more informal and less costly than arbitration. Mediation is a voluntary process in which you meet with your adversary in the company of a third person, the mediator. The mediator, who has no power to impose a solution, usually tries to facilitate settlement by clarifying each person's position, encouraging cooperation and suggesting possible solutions. Professional mediators charge for their services, typically by the hour. Normally, those involved split the mediator's fee.

Even though mediation may be informal, to use it to arrive at an acceptable solution you will probably need to demonstrate both to your adversary and to yourself that you have strong evidence to support your legal position, and that the evidence is admissible in court should mediation fail. Otherwise, you may make an unwise and unfair settlement just because you are afraid to go to trial.

Negotiation: Walk a Mile in Other Shoes

The most ancient way to settle a dispute is negotiation, in which you sit down with your adversary and try to resolve your differences. Whether or not your case goes to trial, you will almost certainly find yourself negotiating some or all of the issues that are important to you.

Against this background, it doesn't normally make sense to interpret your adversary's offer to "talk settlement" as a sign of weakness. Nor should you be reluctant to be the one to suggest a negotiated settlement. In fact, judges, arbitrators and mediators routinely urge adversaries to explore settlement even if previous attempts have failed. A wise person never closes the door to a reasonable settlement.

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The selected articles originally appeared in the Nolo News and are Copyright © Nolo Press 1996 and reproduced here with permission. If you find them of value, we encourage you to visit Nolo Press at their web site http://www.nolo.com. If you wish to post them on-line or otherwise distribute them, first read Nolo's copyright policy.

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