Litigation may involve pretrial discovery, a process through which the parties can gather information about the case from the other party. In discovery, the parties have tools such as depositions, where witnesses and the opposing party answer oral questions, and interrogatories, which are written questions directed to the other party.
The parties may file motions to try to redefine the issues, or to force the other party to do something, such as produce documents for inspection, or to have the court decide the case without a trial.
The court may order a pretrial conference to try to reach a settlement. The trial is then conducted either by a judge alone, or with a jury. Sometimes the judge appoints a referee to take testimony, hear parties, make findings and report these to the court. After the trial the court will enter judgment. Post-trial motions may be filed by the unsuccessful party to convince the judge to amend the decision. The losing party may also appeal the case to an appellate court.
Another way to resolve disputes without a full, formal trial is through alternative dispute resolution, or ADR. This includes such methods as mediation or arbitration.
In mediation, also known as conciliation, an impartial third party is appointed to assist the parties in agreeing on a mutually acceptable settlement of their own crafting. Both litigants and their lawyers, the litigators, appreciate mediation because it minimises risk, delay, cost and stress in a procedurally fair setting.
Arbitration, on the other hand, refers to the practice of designating an impartial tribunal to hear the opposing sides of a dispute and to render a decision on the matter. The tribunal will usually consist of three arbitrators, and the procedure tends to be flexible. The arbitrators’ decision can be binding or non-binding. Binding arbitration is final and cannot be appealed, whereas non-binding arbitration is generally mandated by the courts and can be appealed.
A recent development in ADR is online dispute resolution or ODR. This provides mediation and arbitration via the Internet.