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Litigation Cost-Benefit Analysis And Enforceability Of Arbitration Agreements

When there is a dispute between two parties there are several legal ways to resolve this dispute. A lawsuit is one response to a dispute that involves the court system and can be costly and difficult. Due to the cost and difficulty of bringing a lawsuit, there have been alternative ways for these disputes to be resolved called alternative dispute resolutions (ADR).

They include mediation, arbitration, and neutral evaluation to name a few. With any business decision, there needs to be a cost-benefit analysis, and this especially holds true to deciding whether or not to bring a lawsuit or settle out of court. When deciding whether or not to bring or defend a lawsuit it needs to be analyzed like any other business decision.

There needs to be a cost-benefit analysis done when considering whether or not to take a dispute to court or to try and settle it outside of court. The things that need to be considered are the probability of winning or losing, the amount of money to be won or lost, lawyer fees and other litigation costs, the time lost by personnel, the impact to the relationship long term between the parties, the amount of prejudgment interest provided by the law, the aggravation and psychological costs associated with a lawsuit, the unpredictability of the legal system and the possibility of error, and any other factors pertinent to the lawsuit [Hen16].

Once this analysis has been done and it is clear that bringing the lawsuit to court has the highest probability of being the most cost-effective course of action it can be decided to move forward with the lawsuit. A lawsuit in a lot of situations is not the most cost-effective way to handle a dispute.
Once going through the cost-benefit analysis, it can be easy to see how expensive a trial can be and the need for another option. This is when the parties involved should consider an alternative dispute resolution.

The options available to Solar Co. if they choose not to bring this lawsuit to trial would be mediation, arbitration, and neutral evaluation. Mediation is a good option when there is a well-established relationship that they don't want to be damaged if possible. With this type of resolution, there is a neutral party that is the "mediator" and they help the two parties communicate and reach a mutually agreed upon resolution [Cal18].

The problem with this is that if there isn't a way to reach a mutually agreed upon resolution, the mediator can't make the decision. This is why arbitration is a great way to go when there may be problems coming to that mutually agreed-upon resolution. With arbitration, there is a neutral party that hears the evidence and arguments from both sides and afterward decides the outcome of the dispute [Cal18]. This is less formal than a trial and also a lot less costly. Arbitration can be binding or non-binding, binding means that the parties waive their right to take this dispute to trial. Non-binding arbitration means that if one of the parties doesn't like the resolution they still have the right to take the dispute to trial.

For disputes that have a lot of technical aspects, neutral evaluation may be a good option. Settlement conferences are great in any case where there might be the possibility of a settlement. They are usually held just before a case goes to trial. This is when the parties involved with their attorneys meet with the judge or settlement officer to discuss the possibility of a settlement [Hen16].

In this situation due to the lack of a prior longstanding relationship and the need for a decision without the cost of a trial, arbitration would be the best way to resolve this dispute. In 1925 congress enacted the Federal Arbitration Act to promote the arbitration of disputes. With this being the case it would be a wise decision for Solar Co to use arbitration agreements in the future with anyone that they do business with [Hen16].

An arbitration agreement will establish the arbitration procedures that must follow if there was a dispute that required arbitration. This can save a lot of time and headache if a dispute is to arise and requires that arbitration is to take place first before bringing a lawsuit. With non-binding arbitration, if the parties involved don't agree with the resolution they have the right to take the case to court.

If it is established in the arbitration agreement that the arbitration is binding this right is forfeited and whatever resolution the arbitrator decides will have to be upheld. With the cost of lawsuits being so high the arbitration option is one that most companies should consider.

For Solar Co, the decision to use arbitration agreements in the future is one that will save them money and time if they ever have a situation come up again that requires possible litigation. When settling a dispute, a lawsuit does not have to be the only option. Often a lawsuit should be the last option considered. There are alternative dispute resolutions that can be used to keep the cost and time spent on this dispute to a minimum.

Arbitration is one of these methods to resolve a dispute and is even promoted by the Federal Government. A great way for a company to ensure that a dispute goes to arbitration is to establish an arbitration agreement before conducting business with anyone. Doing so it can dramatically reduce the legal costs inflicted in the case of a dispute.

  • California Courts. (2018). ADR types and benefits. Retrieved from California Courts The Judicial Branch of California:
  • Cheeseman, H. (2016). Legal Environment of Business: Online Commerce, Business Ethics, and Global Issues. Pearson Education, Inc.
Written By: Ms.Rasveen Kaur Kapoor

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