Originally from Alternatives to the High Cost of Litigation

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In today’s legal landscape, some state court litigants get to choose which procedures they use to resolve their cases, and others do not. For example, some courts provide litigants with a choice between mediation and nonbinding arbitration whereas others require parties to use particular procedures.

In the former situation, after assessing their preferences for such options, a litigant might decide they want to use one of the options, but the opposing party might force the issue to trial or try to negotiate the use of an alternative procedure. Ultimately, some litigants will end up using legal procedures that appeal to them initially, and others will not.

Some of these litigants will successfully settle their cases even when they initially dislike the idea of using a settlement procedure for their case. These realities of civil litigation underscore the importance of understanding the connection between litigants’ initial attraction to procedures and how they evaluate them after using them.