FREQUENTLY ASKED QUESTIONS

1. What is the difference between a trial and what is now called alternative methods of dispute resolution?

Legal disputes can be resolved by settlement, by negotiation, by filing a lawsuit, by entering into arbitration or mediation, “short trial programs,” or private trial.
Negotiation involves resolution by the parties without the intervention of any third party or court.
Full litigation results in a binding decision at the end of structured discovery and trial and in some instances it is capable of justifying an appeal by the loser.
Arbitration is a decision by a third party who is not a judge, but the proceedings are informal, private, and it may be binding or non-appealable.
Mediation is resolution by the parties with the aid of a third party. Mediation is voluntary, does not result in the presentation of formal proof, the proceedings are private and can be made confidential.
The primary difference between arbitration and mediation is that arbitration anticipates a result which is reasonably similar to a court determination at reduced costs. Mediation is aimed at getting a compromise resolution where each party trades off issues to accomplish a reasonable result. Such result may not be capable of being structured by a court, and it may be a simpler or longer time involvement.
A short trial program is intended to have the parties present their documents and arguments to a smaller jury together with the testimony of one witness per side in an attempt to achieve the determination in a case which is no longer economically practical for the full litigation process.
People select litigation over all these other alternatives because the case takes longer to get to a point where significant out-of-pocket expenses must be made whereas up-front deposits/costs are incurred in most other methods. Obviously there is no better resolution than one produced by the parties where they have control over the process and the results. This is accomplished through negotiation or mediation.

2. I understand Nevada has a mandatory arbitration program which is not binding. Could you explain to me how the program can be mandatory yet the result is not binding?

The public policy in Nevada provides that a simpler method shall be utilized at the commencement of litigation for various cases where: the amount involved is smaller, the number of issues is limited, and the assets of the parties are restricted. Primarily any case where the amount claimed is less than $40,000.00 is capable of going into the mandatory program. The arbitration procedure is mandatory unless you convince the judicial system that it falls outside the matters which are subject to the program. However, the decision in this court-mandated arbitration can be appealed to the District Court de novo. You then proceed with all normal litigation and the winning party may have costs imposed against them, if they do not achieve a better result in court than they did in arbitration

3. What is the difference between an appeal and a de novo appeal?

An appeal, typically from a lower court to a higher court, is based upon a review of the actions of the lower court. The lower court will be sustained if the result is supported by substantial evidence, and there have not been legal errors in the process which were objected to in a timely manner. The actions of the lower court are reviewed but not completely re-performed.
However, a de novo appeal is a fancy word for saying “start over.” That is, the higher court can look at everything that the lower court did without regard to the lower court’s determination. Thus, the above mandatory arbitration program for smaller cases can result in a de novo appeal to the complete litigation process in the District Court, and results of that trial could be the subject of an appeal to a higher court as a normal appeal.
Under the short trial program which is intended to be accomplished in approximately one day, the parties waive any right to an appeal and thus is considered for cases which are pretty standard in terms of the legal issues and the amount is lower.