Litigation vs. Arbitration: Key Differences Explained by Attorney Brandon H. Zeigler

When faced with a legal dispute, individuals and businesses often must choose between pursuing litigation through the court system or resolving the matter through arbitration, a private alternative dispute resolution method. Both approaches seek to resolve the pending legal issues, but they differ significantly in cost, confidentiality, procedure, and the parties’ rights. Understanding the differences between litigation and arbitration can help parties make well-informed decisions.

What Is the Difference Between Litigation and Arbitration?

At a fundamental level:

• Litigation is a formal, public court process governed by strict rules and offering multiple levels of appeal.
• Arbitration is a private, flexible, and often faster process where parties select a neutral arbitrator to decide the dispute.

“Litigation offers the full structure and protection of the court system, while arbitration offers privacy and efficiency. The right choice depends entirely on what your goals in resolving the dispute.” — Brandon H. Zeigler

Initiating a Case: Litigation vs. Arbitration

Litigation

A lawsuit begins when:

• A plaintiff files a complaint with the appropriate Virginia court.
• The defendant is formally served and must respond within 21 days.
• In most cases, either party may elect to have the dispute resolved by a jury trial, allowing a panel of citizens to determine the outcome.

Learn more about the litigation process on our Civil Litigation Practice Page.

Arbitration

Arbitration begins when:

• A claimant files a Demand for Arbitration with an organization such as JAMS or the American Arbitration Association (AAA).
• Demands are submitted online, and respondents typically have 14 days to answer.
• Counterclaims may be filed through the same system.

“The initiation of arbitration is often quicker and more streamlined, especially with online filing portals.” — Brandon H. Zeigler

Who Decides the Case: Judges vs. Arbitrators

Judges

In Virginia:

• Judges are appointed by the legislature.
• They follow the Rules of the Supreme Court of Virginia.
• Their decisions appear on the public record.
• Rulings can be appealed to higher courts.
• Jury trials are available when appropriate.

Arbitrators

Arbitrators:

• Are private individuals, often attorneys or retired judges.
• Are chosen by the disputing parties for their experience or subject-matter expertise.
• Conduct confidential hearings.
• Issue decisions that are generally final and binding.

“Arbitrators provide specialized expertise and flexibility. This makes arbitration attractive in business or technical disputes.” — Brandon H. Zeigler

Rules That Govern the Process

Litigation Rules

Litigation follows:

• The Rules of the Supreme Court of Virginia
• Rulemaking authority found in Virginia Code § 8.01-3

Arbitration Rules

Arbitration:

• Is not bound by the Rules of the Supreme Court
• Follows rule sets created by arbitration providers such as JAMS or AAA
• May use industry-specific rules (e.g., AAA Construction Industry Arbitration Rules)

Discovery: How Information Is Exchanged

Discovery in Litigation

Litigation provides broad and formal discovery options, including:

• Depositions
• Interrogatories
• Requests for Production
• Requests for Admission
• Subpoenas

Because discovery is extensive, it can be time-consuming and costly; however, it allows the parties full access to relevant information.

For disputes involving significant discovery needs, our Civil Litigation Attorneys can help.

Discovery in Arbitration

Arbitration offers limited and targeted discovery:

• Exchange of key documents
• Narrowed scope set by the arbitrator
• Few, if any, depositions
• Emphasis on efficiency

“Arbitration typically limits discovery, which reduces costs and speeds up resolution.” — Brandon H. Zeigler

Subpoenas in Litigation vs. Arbitration

Litigation

Attorneys may issue without seeking court approval:

• Witness subpoenas
• Document subpoenas (Subpoenas duces tecum)

Arbitration

Under Virginia Code § 8.01-581.06, the arbitrator must approve and issue subpoenas, including:

• Witness subpoenas
• Document subpoenas

Trial vs. Arbitration Hearing

Litigation Trial

Trials take place in a public courtroom and follow formal procedures, including:

• Testimony under oath
• Strict adherence to the Virginia Rules of Evidence
• Published verdicts

Arbitration Hearing

Arbitration hearings:

• Are private
• Use relaxed rules of evidence
• Allow arbitrators to consider almost any relevant information
• Feature streamlined testimony and fewer objections

“The relaxed evidentiary rules in arbitration provide flexibility but may also limit certain legal strategies.” — Brandon H. Zeigler

Appeal Rights

Litigation

Virginia court decisions may be appealed to:

• The Virginia Court of Appeals by an appeal of right, meaning the Court of Appeals will hear your appeal if you follow their rules.
• Potentially the Supreme Court of Virginia

Arbitration

Arbitration awards are:

• Final and binding
• Overturned only in rare circumstances (e.g., exceeding arbitrator authority)

Cost Differences Between Litigation and Arbitration

Litigation Costs

Litigation may involve:

• Attorney’s fees
• Filing fees
• Deposition and discovery costs
• Court reporters and transcript expenses
• Appellate fees

Arbitration Costs

Arbitration often results in lower overall costs due to:

• Streamlined discovery
• Faster resolution
• Reduced motion practice
• No appellate costs

However, parties must pay:

• Arbitrator’s hourly or daily fees
• Administrative fees from JAMS or AAA

“Arbitration can be more predictable in cost and duration, which makes it appealing to businesses and individuals looking to avoid years of litigation.” — Brandon H. Zeigler

Litigation vs. Arbitration: Which Should You Choose?

You may prefer litigation if you need:

• Thorough discovery
• Full evidentiary protections
• Multiple appeal opportunities
• A public record

You may prefer arbitration if you want:

• Privacy
• Faster results
• A flexible process
• Lower overall costs
• Industry-specific expertise

“There is no one-size-fits-all answer to choosing litigation or arbitration. The best forum depends on the nature of the dispute, desired timeline, confidentiality needs, and procedural protections the parties want.” — Brandon H. Zeigler

Considering Litigation or Arbitration? We Can Help.

At Parks Zeigler, PLLC, our attorneys, including Brandon H. Zeigler, represent clients in both litigation and arbitration across Virginia and North Carolina. We help individuals and businesses select the dispute-resolution method that best protects their rights and goals.

To learn more about how our team can assist you, visit our:

• Civil Litigation Practice Page
• Business Law Practice Page