Dispute Resolution 2026 Comparisons

Litigation is the primary dispute resolution method in the United States. It involves the plaintiff (typically at least one individual or entity) filing a lawsuit with a court and serving the lawsuit on the opposing party, the defendant, who allegedly caused some harm. If the defendant believes that the plaintiff likewise caused some harm to it, then the defendant may bring a counterclaim against the plaintiff in an attempt to access its own remedies. The defendant may also opt to bring another party into the case if it believes that some other party is partially or fully responsible for the alleged harm.

Mediation and arbitration are the main alternative dispute resolution methods used to resolve commercial disputes in the United States. The mediator guides the parties to a resolution, often involving compromise from all participants, but does not make any legal rulings or findings of fact. Rather, the mediator assesses the strengths and weaknesses of each party’s position and highlights those for the opposing party in an attempt to preview or predict how the claims may fare in litigation or at trial.

The other primary dispute resolution method in the United States is arbitration. Unlike mediation, arbitration is a more protracted process that includes elements of traditional litigation, such as written discovery, motion practice, and ultimately an evidentiary hearing (similar to a trial). Arbitrations are presided over by either a single arbitrator or panel of arbitrators who have more authority than mediators but less than judges.

Litigation continues to be the most popular dispute resolution method in the United States. However, most cases also involve at least some attempt to mediate, usually toward the beginning of the case’s life cycle. Furthermore, arbitration is common within certain categories of disputes.

Generally speaking, mediation tends to be more popular than arbitration, irrespective of the type of underlying dispute. In some ways, mediation is viewed as a natural step in the litigation process, while arbitration is a wholesale alternative in a different forum. It benefits parties to participate in mediation early in a case’s life cycle so that there is a chance of the dispute resolving before either party has expended significant resources litigating. Some courts even require parties to attempt mediation in certain circumstances or at particular junctures of litigation. If mediation fails, then the parties continue litigating as they were before.

Courts are overburdened by the sheer number of cases on their dockets. This is particularly true for courts with split dockets, meaning those that are tasked with presiding over both civil and criminal matters. Because of due process protections under the United States Constitution, courts are obligated to prioritise the resolution of criminal cases over civil ones. This results in civil motions often remaining pending for many months or even upwards of a year. In that time, discovery may or may not be proceeding, but either way, the parties may end up needing more time than expected to wrap up all discovery efforts once the motion is ultimately decided. So discovery deadlines and trial dates may be pushed out, further extending the litigation and driving up costs. Once it is time for trial, again, criminal matters may be prioritised, further pushing out civil trial dates.

In light of these considerations, alternative dispute resolution methods – like mediation and arbitration – are gaining significant traction. Such methods tend to be more cost-effective and efficient, with disputes being resolved faster than through the standard course of litigation.

A limitations period is the timeframe within which a party must bring a claim before it expires. The limitations periods that apply to bringing different claims vary by jurisdiction and are typically set by statute. Generally speaking, contract-based claims have longer statutes of limitation, whereas tort-based claims (such as negligence in a personal-injury action) have shorter periods. This is because a claim involving some kind of personal injury is likely to be known earlier than the potential harm resulting from a contract violation, which may take some time to become evident. Some statutes of limitation are counted from when the injured party discovers the injury, while others are counted from the time the harm actually occurred.

In the United States, there are many types of courts (including federal, state, municipal, and tribal, as well as administrative tribunals), but the primary two are federal and state. Courts are structured in tiers, with trial courts (sometimes called “district courts”) as the lowest level courts having the broadest scope of jurisdiction. Trial court decisions can be appealed to the next level appellate court; usually some kind of intermediate court of appeals. The highest-level courts are supreme courts, which have the narrowest jurisdiction. This three-tiered composition of district courts, intermediate appellate courts, and supreme courts is prevalent in both the federal and state systems.

State courts are considered courts of general jurisdiction, meaning that they can hear the broadest spectrum of cases. Federal courts, on the other hand, are limited to the jurisdiction delineated by the United States Constitution. This means that certain claims cannot be raised in federal court and must be brought exclusively in state-court proceedings. This arises from the fundamental American principle of federalism, which recognises that states should oversee more state-specific issues, while the federal government should manage broader issues that extend beyond states’ borders.

Certain types of claims may contain exhaustion requirements mandating that a litigant first fully exhausts available administrative remedies before filing a lawsuit. Such requirements are typically set by statute. In the context of prisoners’ civil rights claims, for instance, inmate plaintiffs must demonstrate that they have pursued relief through the prison’s internal processes before resorting to court action. Exhaustion requirements are also common in the discrimination context, in which parties must first attempt to resolve their disputes through administrative bodies – like an equal employment agency – before filing a lawsuit in a court. This is, again, an attempt to ease the burden on courts and limit their caseload. Allowing administrative agencies the initial opportunity to resolve disputes yields a more specialised approach to dispute resolution because the factfinders of administrative agencies routinely deal with similar types of disputes and can therefore more efficiently resolve them.

In the United States, the main stages of court proceedings are the initial case assessment (analysing potential strategies and ways forward), the pleading stage (when a lawsuit is filed), the discovery phase (when parties actively develop the record and learn about the facts supporting or refuting their positions), the summary-judgment stage (when parties defend their positions and attempt to either prove or defend the underlying claims), the trial phase (when parties present all of their evidence, including documents and witness testimony, to a factfinder for resolution), and the appellate phase (when the losing party attempts to overturn some aspect of the lower court’s findings).

Once litigation has commenced, the parties engage in the discovery process, through which they collect documents from the other party or from third parties, ask pointed questions (interrogatories) in writing to the other party, conduct oral depositions (testimony under oath), perform physical inspections or examinations, and engage expert witnesses to opine about the circumstances of the case (liability, damages, causation, etc). Throughout the discovery process, the parties may file an array of motions with the court.

Once discovery has concluded, the parties may choose to file dispositive motions (typically, motions for summary judgment), which – if granted – would resolve all or part of the parties’ dispute. Assuming there are some claims remaining after the summary judgment phase of litigation, the case proceeds to trial. There are two types of trials: bench trials (in which the factfinder is the judge) and jury (in which a group of citizens serves as the factfinder). Either way, the parties present their evidence and arguments at trial, and a final decision or ruling is issued. Parties must then choose whether they will comply with the court’s final ruling, comply in part, or appeal the decision to the next level of the court system.

The First Amendment of the United States Constitution guarantees freedom of speech and freedom of the press. As a general rule, the public and news media have the right to attend criminal trials and enjoy a long-standing tradition of public access to civil proceedings. Thus, court proceedings and filings are presumptively open to the public. A party wishing to restrict public access to a court proceeding or document must overcome this presumption by demonstrating the existence of a compelling reason that outweighs the public’s need for access. Parties may also stipulate as to the confidentiality of certain documents through a protective order that requires the parties to mark documents in a specific way (such as “attorneys’ eyes only” or “confidential”). This is common in certain contexts, particularly trade-secret cases and cases involving someone’s safety. Parties likewise sometimes choose to redact portions of documents to limit disclosure of information to the public.

There are two primary kinds of interim relief available to litigants: temporary injunctions and preliminary restraining orders. Parties seek temporary injunctions in emergency situations when the relief sought cannot wait until the court has the opportunity to hold a hearing. The test for this kind of injunctive relief is whether there is a threat of irreparable harm, such as a building about to be torn down or an irreversible surgery about to be performed. Monetary harm is not considered irreparable.

Temporary injunctions usually last for a short period of time until the court holds a full hearing on the matter and can decide whether more permanent relief is appropriate. If a court grants a preliminary injunction, its purpose is to maintain the status quo until the parties fully litigate the matter. After summary judgment or trial, if a party is entitled to a continuation of the injunctive relief, then a court may issue a permanent injunction. Interim relief – like temporary injunctions and preliminary restraining orders – is not particularly common, mostly because the test to qualify for it is so difficult to satisfy. Seeking relief on such an expedited basis can also significantly drive up litigation costs, and some parties do not view it as worthwhile to incur such expenses, particularly early in a case’s life cycle.

The key types of final relief available to litigants in commercial litigation are legal relief (monetary damages), equitable relief (non-monetary damages), declaratory relief, and restitution or disgorgement. There are various subcategories of monetary damages, but the primary one is compensatory damages, which are intended to make the damaged party whole. For example, if a party incurred USD50,000 in medical bills due to another party’s conduct, then the injured party may be entitled to USD50,000 in compensatory damages to put that party back in the same situation it would have been in had the incident not occurred.

Equitable relief generally includes injunctive relief (temporary injunctions and preliminary restraining orders), which explicitly directs a party to take some affirmative action or to refrain from doing so. Declaratory relief consists of a court declaring a party’s rights. An example of declaratory relief is if a court declares that Parcel X belongs to Party A, while Parcel Y belongs to Party B. Lastly, restitution and disgorgement are two sides of the same coin and are used to prevent the unjust enrichment of one party to the detriment of another.

Expert testimony is typically used to assess the extent of a party’s damages. In some states, property owners may opine about the value of their own property. The main types of monetary damages are compensatory, punitive, nominal, and liquidated. Compensatory damages are meant to make an injured party whole. Punitive damages are intended to punish a party for particularly egregious conduct. Nominal damages are used when a party committed some wrong but the precise financial loss has not been or cannot be proven. And liquidated damages are those that parties agree to by contract, in anticipation of a potential lawsuit. For instance, parties may agree that a breach of their contract entitles the non-breaching party to liquidated damages in the amount of USD100,000. This takes the guesswork out of a damages calculation and narrows the scope of issues that a court must determine, which ultimately conserves the parties’ resources.

Arbitration is broadly permitted under the Federal Arbitration Act (FAA). Many states have adopted legal frameworks similar to the FAA as well. Arbitration is prevalent throughout the United States but is particularly common within certain categories of disputes, especially consumer and employment. This is because consumer and employment contracts tend to be standardised and developed by companies that wish to streamline their processes, including the potential risks of legal action. Rather than having to litigate in a variety of forums or jurisdictions under different rules and procedures, companies that choose to mandate arbitration gain more control and predictability over potential disputes that may arise. Courts tend to enforce mandatory arbitration clauses, unless they are deemed unconscionable.

Arbitration clauses in contracts will not be enforced if they are deemed unconscionable – that is, shockingly unfair or excessive. But by and large, arbitration clauses are enforced. When seeking to get around an arbitration clause, many plaintiffs make the argument that there was uneven bargaining power amongst the parties when the contract was negotiated and executed, meaning that the less powerful party (typically a consumer or employee) did not have a truly equal opportunity to negotiate with the more powerful party over certain contractual terms or provisions. Courts tend to reject such arguments, so plaintiffs must carefully review agreements containing mandatory arbitration clauses, as they will more likely than not be enforced.

There is a growing trend to exclude certain types of cases from mandatory arbitration, including some class-action lawsuits and employment disputes arising out of alleged sexual harassment or other forms of discrimination.

One of the perceived advantages of arbitration is that it tends to move much quicker than litigation, providing parties with swifter resolutions to their disputes. Many contracts – namely, in the consumer and employment contexts – contain mandatory arbitration provisions that require parties to arbitrate any disputes before initiating litigation. These provisions are typically enforced by courts, especially by federal courts through the Federal Arbitration Act (FAA).

Arbitration provisions provide parties with some assurances that the threat of litigation does not. For instance, the public is not entitled to access arbitrations in the same way that the public has a presumption of access to court proceedings and filings. Choosing to engage in arbitration protects parties’ privacy interests. Additionally, while arbitration is not inexpensive by any means, it typically ends up being less expensive than litigation. This is because, by and large, there tends to be less motion practice in arbitrations, and the discovery periods are often shorter than in litigation. Disputes are resolved faster in arbitration than in traditional litigation, which benefits parties and overburdened courts alike.

Arbitration can have a few disadvantages. Arbitral decisions are generally final and binding, such that courts only overturn an arbitrator’s decision in narrow circumstances. Refer to the Trends and Developments article of the Chambers Dispute Resolution 2026 Guide for the USA (nationally) for a more in-depth discussion on this point. Moreover, arbitration can present high upfront costs, posing a barrier to access for parties who might otherwise want to resort to ADR. This is because parties have to split the arbitrator’s rate up-front, subject to any applicable fee- and cost-shifting provisions. Initial filing fees in litigation are less expensive and the parties do not have to pay for the court’s time spent on the case.

Aside from state-specific annexed programmes, the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS) arbitral institutions are popular in the Untied States. Other international arbitral institutions are popular as well, including the International Chamber of Commerce and the International Centre for Dispute Resolution, particularly in cross-border matters.

Arbitration is preferable over litigation because it can resolve a dispute faster. There are several factors informing the speed of arbitral proceedings, including but not limited to (i) whether the arbitration is binding, (ii) how many parties are in the dispute, and (iii) which arbitral body’s rules govern the proceeding. The AAA, for example, advertises that business-to-business disputes take a median time of 18.7 months while employment cases take a median time of 17 months.

The United States has various key laws relating to arbitration. Specific state jurisdictions may, for example, have court-annexed arbitration programmes. (See, eg, Nevada Rules Governing Alternative Dispute Resolution, General Provisions, Rule 2(a).) Congress has enacted the Federal Arbitration Act (FAA), which generally applies to arbitration agreements and provisions in contracts involving interstate commerce. (9 USC, Sections 1–16.) Section 2 specifically provides that, where the FAA governs, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or equity for the revocation of any contract.” Federal agencies in the United States, by way of the Administrative Dispute Resolution Act, can use arbitration and other ADR techniques to resolve disputes. (5 USC, Sections 571–84.)

Federal and state statutes, as well as common law, give courts in the United States powers to support (and in fact even compel) arbitration. The Federal Arbitration Act and each state’s arbitration law provide for limited grounds for when a court can vacate or modify an arbitration award. (See 9 USC, Sections 10–11.) As a general matter of common law in the United States, arbitration is mandated so long as the underlying agreement is valid and enforceable by virtue of common law principles. Finally, as a matter of state law, many states in the United States have compulsory arbitration programmes in cases with relatively smaller amounts in controversy.

Courts can intervene in arbitration where a party initiates a lawsuit despite the fact that there is an arbitration clause or agreement that governs the dispute. In that instance, the defending party will have to move to compel arbitration. The resulting motion practice centres primarily on the scope and enforceability of the arbitration provision or agreement. Courts can also intervene to enforce arbitral awards, vacate arbitral awards altogether, or modify or correct arbitral awards. Finally, courts can intervene in limited agreed-upon disputes, such as when the governing agreement permits the parties to seek preliminary injunctive relief.

Interim relief available in arbitration mirrors that available in traditional litigation. This includes preliminary injunctions, writs of attachment, receiver appointments, or orders preserving evidence. With preliminary injunctions, for instance, arbitrating parties would seek preliminary injunctive relief from a court and later submit to the arbitrator for full resolution of the merits. Today, it is more common to obtain preliminary injunctive relief from the arbitrator.

Beyond interim relief, arbitrators have an array of remedies at their disposal. This can include a mix of equitable and monetary relief, or just one or the other. And the remedies can exceed that which a party might be able to obtain via litigation. As an example, arbitrators can award reinstatement in employment cases. As another example, in construction disputes, an arbitrator can issue continuation orders, enforcing construction timelines or standards for a given project. The flexibility arbitrators enjoy in fashioning relief is largely attributable to the arbitration programme’s governing rules; the American Arbitration Association, for example, generally allows arbitrators to award relief deemed just and equitable. Parties can, however, always contractually limit any otherwise available remedies.

Aside from litigation or arbitration, parties can pursue ADR procedures such as mediation, conciliation, early neutral evaluations, or short trials for their disputes. Mediation is a voluntary, often confidential process where a neutral third-party helps resolve the dispute. The results in mediation can be binding, pending a signed settlement agreement or other agreement from the parties, although it is generally viewed as non-binding. Like mediation, conciliation also uses a neutral third-party to resolve the dispute, which can be binding pending an enforceable settlement agreement.

Unlike mediation, conciliation is less formal, generally featuring a more involved neutral third-party, who can engage with the parties separately and actively evaluate legal positions of the parties. Early neutral evaluations occur where disputing parties seek out a confidential evaluation from a neutral evaluator. Like arbitration or mediation provisions, parties can include provisions in their contract to submit disputes to an early neutral evaluation in advance of litigation or a more binding option. Short trials, although a form of litigation, are also available in certain jurisdictions to fast-track certain disputes.

There are formal requirements to engage in ADR in certain circumstances. Where a valid and enforceable agreement contains a valid and enforceable provision requiring ADR, such provisions are enforceable. Consequences for failing to do so can include denial of a trial de novo, striking with dismissal of the lawsuit altogether, along with sanctions. Certain statutes, whether federal or state, can also require ADR. Indeed, the Federal Arbitration Act requires arbitration when the arbitration provision or contract is valid and enforceable. State-wise, for example, various states have compulsory arbitration in certain civil cases. Even then, the arbitration decision may not be binding. Outside of those instances, most ADR options are voluntary.

ADR’s impact on the proceedings turns on a variety of factors. Because ADR is generally faster than litigation, ADR can be seen as both more efficient and less expensive. This is not always true, however, as a party engaged in ADR generally must split neutral expenses up front. Relatedly, ADR mechanisms can help streamline the proceedings, which can lead to better resolutions for the parties. Beyond that, ADR can provide confidentiality that a party would not otherwise be entitled to in litigation, which is presumptively publicly-accessible.

The effect of ADR on a party’s right to litigate turns on whether the ADR proceeding is binding. Non-binding ADR options, such as mediation or early case evaluations not otherwise restricted by a commercial contract, would not affect a party’s right to litigate or arbitrate in and of itself. (However, pursuing those ADR options does not toll any applicable statute of limitations.) Binding arbitration does foreclose the ability to litigate, as there are limited bases to appeal a binding arbitration award. That said, a party can potentially waive arbitration by litigating a case for some time before trying to compel arbitration.

As a practical matter, ADR techniques like mediation usually occur pre-litigation. Some states even require court-annexed arbitration or mediation early on in the litigation process. Additionally, parties can strategically choose to opt for mediation or other non-binding ADR options during or after discovery, when the pros and cons of a given dispute are clearer.

It is important to note, however, resorting to ADR statutory timelines generally does not toll the limitations period. But certain statutes can toll the applicable limitations period in a given case. For example, in Wisconsin, if a claimant files a mediation request before pursuing court action, the limitations period is tolled from the date the director of state courts receives the request and remains tolled until 30 days after the last day of the mediation period. (See Wisc. Stat. 655.44(4).)

Arbitration and mediation can be confidential and turn largely on the applicable rules or contract provisions. For example, the Uniform Mediation Rules drafted by the Uniform Law Commission, opted into by a handful of states, provides that mediation communications are generally confidential and privileged. (See Uniform Mediation Rules, Section 5.) In a similar vein, Rule 26 of the JAMS Comprehensive Arbitration Rules and Procedures states that the arbitrator generally “shall maintain the confidential nature of the Arbitration proceeding and the award,” subject to certain exceptions. Specific court rules and statutes can also impose confidentiality restrictions. Even so, parties can lose confidentiality protections. Trying to enforce or vacate an arbitration award in court will, of course, waive any confidentiality of the award. Parties can also consent to specific disclosure requirements.

Generally, neutral fees are borne by the parties equally. Neutral fees include the mediator or arbitrator’s rate, fees charged by the ADR provider to manage the case, room rentals, or court reporter costs. However, parties can always choose to contract away from that default rule. Commercial contracts can pre-determine how costs will be handled should the case advance to arbitration. Because mediation is voluntary and non-binding, it is much more common to see equal fee-splitting in mediation. Conversely, because arbitration is often governed by a contractual provision, it is common to see fee- and cost-shifting of arbitration expenses.

In the same way US courts favour settling disputes, they also favour the use of ADR. Litigation is expensive and time-consuming. Using alternative methods to resolve disputes outside of the courts helps relieve the courts and the litigants of that time and financial burden. Policy-wise, there is a view that forcing plaintiffs to arbitrate when there is an asymmetry of bargaining parties is unfair, and this is especially true where the party with less bargaining power has little notice of a binding arbitration clause. Still, courts in the United States largely endorse using ADR.

The “American Rule” requires each party to pay its own legal costs. Legal fees are regulated through a combination of ethical rules, court oversight, and market forces rather than a single centralised system. Most states base their standards on the American Bar Association’s Model Rules of Professional Conduct, which require that attorneys charge “reasonable” fees based on factors such as the complexity of the case, time involved, and the lawyer’s experience.

Courts review fees in certain cases, especially where fee-shifting statutes apply and may reduce excessive charges. Statutes and contracts, however, can shift fees to the losing party. There are additional regulations from laws that cap or guide fees in specific areas, along with disclosure requirements and fee dispute arbitration.

Third-party funding is available where external financiers cover legal fees in exchange for a share of the final award. This practice has increased access to justice but has also raised significant concerns regarding disclosure, confidentiality, conflicts of interest, and control over proceedings. States impose limits where funding agreements appear to give the funders excessive control over the dispute resolution strategy.

Contingent fees are available in dispute resolution cases except in domestic relations matters or criminal cases. Contingent fees are regulated by the American Bar Association Model Rules of Professional Conduct, particularly Rule 1.5. These rules require that the contingency agreement be in writing and clearly specify how the fee will be calculated, including the percentage the lawyer will receive, how arbitration costs are handled, and whether those costs are deducted before or after the fee is applied. Some jurisdictions impose statutory caps on contingency fees for certain cases such as medical malpractice. Arbitrators will also consider contingency fee arrangements when allocating costs.

Insurance coverage is available in the United States for litigation, arbitration, and ADR primarily through liability policies that cover legal defence fees and settlements. Liability insurance policies typically apply to commercial general liability (CGL), directors and officers (D&O) and professional liability (malpractice). Coverage is often provided on a “claims made” basis, meaning the policy must be active when the claim is made. These policies typically include a “duty to defend” meaning the insurer must pay for lawyers and related costs. Coverage is tailored to specific risks and will define “claim” or “proceeding” broadly enough to include arbitration or ADR, while some policies explicitly include arbitration or ADR, but the specific wording of the policy will govern which dispute resolution mechanisms are governed or not.

Under the American Rule, each party pays its own legal costs, including attorneys’ fees and other dispute-related expenses. Parties can contractually agree to override the American Rule and allow the prevailing party to recover attorney’s fees. When the arbitration agreement is silent, the AAA gives arbitrators the discretion to award fees if they find it just or authorised by law. In mediation, parties generally pay for their own legal counsel and split the cost of the mediator, regardless of the outcome. When a settlement agreement is reached, the parties are able to negotiate who pays what and the final agreement will determine the fee allocation.

Under the AAA rules, arbitrators will consider a mix of legal entitlement and fairness, such as contract terms between the parties, applicable law, who prevailed on their claims, conduct of the parties, and reasonableness and proportionality of the costs. Most mediation cases divide costs equally between the petitioner and respondent.

Types of interim relief would include tribunal-ordered measures that are designed to protect a party’s interests before a final award. These would include freezing orders (Mareva Injunctions), orders preventing a party from changing the current situation until the final decision, or ordering the safe custody of property or documents to prevent destruction of evidence.

Courts generally grant interim relief in support of arbitration or ADR so long as the arbitration agreement does not prohibit it. These interim relief measures are issued before or during arbitration or ADR to ensure that the final award is effective.

Applications for interim relief are petitioned for when the party needs urgent, temporary protection before the final decision is issued. If the petition is made too early, the petitioning party may lack the necessary evidence to be granted the interim relief by the tribunal and if the petition is made too late, the harm to be prevented by the grant of the interim relief may already have been done.

A party can apply for security for costs in arbitration as an interim measure to ensure that legal costs will be recovered if the opposing party fails to pay. Security for costs is generally granted when a claimant is likely unable to pay an adverse costs award and there is a high chance of non-recovery.

A party can apply for interim injunctions which are specific court orders compelling or prohibiting actions until a final judgment. Interim injunctions are typically granted when they are deemed necessary to prevent imminent, irreparable harm and maintain the status quo before the final award.

Summary judgment motions are due within 30 days after the closure of all discovery. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is granted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. If a court were to deny the motion for summary judgment, the court should state on the record the reasons for denying the motion.

Class actions are primarily governed by Rule 23 of the Federal Rules of Civil Procedure. The complaint filed with the court must contain a proposed “class definition” which describes the members of the class that the named plaintiff seeks to represent in the lawsuit. Then, the court must certify the class and determine whether a lawsuit may proceed to trial as a class action. Pursuant to Rule 23, the class must be so large that joining individual lawsuits from all individuals would not be practical, there must be a common question of law or fact among all members, the claims of the lead representative must be typical of the claims of the entire class, and it must be clear that the representative parties will fairly protect the interests of the entire class. State courts may have their own procedural rules regarding class certification but most states’ rules are modelled after Rule 23.

To have standing to bring a class action lawsuit, the named plaintiff must have suffered a real, immediate, and distinct injury, the injury must be traceable to the named defendant’s actions, and it must be likely that a favourable court decision will remedy the injury. If these standing requirements are satisfied, then the class must be certified pursuant to Rule 23 of the Federal Rules of Civil Procedure. The class must be so numerous that joining all members individually is impracticable, there are questions of law or fact common to the entire class, the claims or defences of the representative parties must be typical of the claims of the entire class, and the representative parties will fairly protect the interests of the entire class.

The relief available in class action litigation will depend upon the type of class action suit the class members filed. At the federal level, there are three kinds of class action suits and each provides different forms of relief based on the nature of the claims and the conduct challenged. The first is outlined in Federal Rule of Civil Procedure 23(b)(1), in which the court may award monetary relief or injunctive relief. Here, classes typically seek declaratory or injunctive relief rather than individualised monetary damages. Litigants that file a 23(b)(2) class action must predominantly seeks injunctive and/or corresponding declaratory relief. A court may additionally award monetary damages, but only if monetary damages are incidental to the requested injunctive or declaratory relief. If monetary relief predominates over or requires individualised determinations, then courts may only certify the class under Rule 23(b)(3). Class actions under Rule 23(b)(3) are the most common. Typically, monetary relief is awarded to a prevailing class.

Each state additionally has its own class action laws, but the states’ frameworks largely mirror the federal framework described above. That said, there are variations among the states that will ultimately determine the relief available to class action litigants in state court.

Class arbitration is permitted only if the parties to the arbitration explicitly agreed to resolve class disputes via arbitration. This explicit consent requires a written document – an arbitration agreement or other contract – that contains a clause directly and affirmatively permitting class arbitration of disputes arising under the contract. In Stolt-Nielsen S.A. v AnimalFeeds Int’l Corp., 559 U.S. 662, 684 (2010), the United States Supreme Court has held that class arbitration is not permissible if the contract governing the parties’ dispute waives the parties’ right to class arbitration or is silent on the issue of class arbitration.

Historically, federal class action lawsuits in the United States tended to be securities and employment disputes. However, the number of federal class action lawsuits surged in 2025, and it appears that consumer protection and privacy-related lawsuits drove this growth. One of the especially fast-growing areas in class action litigation is data breach filings, which have increased in frequency by more than 200% since 2022. Not only are more class action lawsuits getting filed, but courts certified class actions at a consistently high rate in 2025 – roughly 68%. When a judge “certifies” a putative class, they essentially give the class their stamp of approval, permitting the class to move the case forward as a group and seek group relief. There are many stringent requirements a putative class must prove to receive certification, indicating that judges in 2025 were fairly receptive to mass claims.

Parties to litigation have a duty to disclose certain categories of information to their opponent, including:

• contact information of individuals likely to have relevant and non-privileged information that the disclosing party may use to support its claims or defences;
• documents that the disclosing party may use to support its claims or defences;
• a rough estimate of the damages that the disclosing party seeks to recover in the litigation and the documents that support the estimate; and
• all insurance agreements under which an insurer may be liable to satisfy all or part of a potential judgment or to reimburse or indemnify a payment that a party may make in satisfaction of a potential judgment.

A party to litigation must disclose these categories of documents at the outset of the lawsuit, even if the opponent never asks for them.

In addition, a party to litigation has an obligation to provide their opponent with all documents that the opponent requests, so long as the requested documents are:

• relevant to the parties’ claims and defences;
• proportional to the needs of the case; and
• not protected from disclosure by a privilege recognised in the court’s jurisdiction, such as the attorney–client privilege.

Documents that meet these three requirements are “discoverable” and fair game for a party to demand from their opponent, and vice versa.

Various jurisdictions within the United States recognise different privileges. For example, federal common law recognises certain privileges, while all 50 states have their own laws that set forth the privileges recognised in their respective jurisdictions. There are some especially “common” privileges that are, by and large, albeit not completely, recognised across the country and throughout the many jurisdictions within the United States:

• attorney–client privilege;
• accountant–client privilege;
• doctor–patient privilege;
• marital communications exchanged between spouses during their marriage; and
• clergy–penitent privilege.
• Ultimately, the privileges that may be invoked in a particular lawsuit will depend upon the laws governing the parties’ claims and defences.

The various jurisdictions within the United States recognise the right of a party to litigation to withhold documents from other parties on grounds of privilege. All privileged documents are confidential and may not be disclosed absent an applicable exception. That said, exceptions will vary from one type of privilege to the next (eg, attorney–client privilege versus doctor–patient privilege). The exceptions will also vary based on jurisdiction, with federal law and state law providing for different exceptions and varying nuances therein. Further, there are some documents that may be considered confidential by the parties but, because they are not privileged, may not be withheld. Nevertheless, the parties may take certain measures to protect this sensitive information, such as limiting who may view the confidential information or sealing the information from the public record.

The legal system differentiates between lay and expert witnesses. Lay witnesses are fact witnesses who may testify about people or events they personally experienced or about which they hold first-hand knowledge. Expert witnesses, by comparison, must hold scientific, technical, or other specialised knowledge and be recognised by the court as qualified to offer expert opinion on the subject about which the expert is asked to testify – whether it be through knowledge, skill, training, education, or experience.

Before trial, witness evidence may be gathered, reviewed, and preserved by parties to litigation during the discovery period, subject to the procedures and protections previously outlined. Once the parties proceed to trial, they most commonly present witness evidence via live witness testimony. During both pre-trial depositions and trial testimony, parties have a right to cross-examine their opponent’s lay and expert witnesses. During cross-examination, a party may challenge the witness’s opinions and explore the credibility (or lack thereof) of the witness’s testimony by asking questions that may expose the witness’s bias, motive, poor memory, and/or inconsistent statements.

Expert evidence is permitted in both federal and state courts in the United States. It is common for parties to hire their own experts and, under the American Rule, they must personally pay their experts hourly rates and other expenses. Alternatively, a court may appoint an expert on its own or by a party’s motion. The court may appoint any expert of its own choosing or one on which the parties agree. The court must inform the expert of their duties, which include:

• advising the parties on any findings the expert makes;
• submitting to deposition by any party;
• being called to testify by the court or any party; and
• being cross-examined by any party.

A total of 48 states and the District of Columbia have adopted the Uniform Enforcement of Foreign Judgments Act (UEFJA), which sets forth the procedure to enforce a foreign judgment. In general, the 50 states will recognise and enforce judgments entered by their sister states (“foreign judgments”), giving the foreign judgment “full faith and credit”.

Under the UEFJA, a judgment creditor may request a court to recognise and enforce their foreign judgment by filing (i) an “exemplified copy” of the foreign judgment, which is a court-authenticated copy carrying three layers of verification, including the court clerk’s certification, the judge’s confirmation of the court clerk’s authority, and the court’s seal; and (ii) the judgment creditor’s signed affidavit declaring the mailing information of the judgment creditor and judgment debtor, a statement that the foreign judgment is valid and enforceable, and a description of the extent to which the foreign judgment has already been satisfied. Once the foreign judgment is filed, it is treated as if it is a domestic judgment, subject to the same procedures, enforcement, and defences to enforcement. The judgment creditor is empowered to bring a civil action to enforce their judgment and collect against the debtor.

The prevailing party to an arbitration proceeding may enforce their award by “confirming” it with a court having jurisdiction over the parties and claims. Refer to the Trends and Developments article of the Chambers Dispute Resolution 2026 Guide for the USA (nationally) for a more in-depth discussion on this point.

The length of proceedings to confirm an arbitration award will vary significantly from court to court. That said, confirmation proceedings are typically much shorter than the litigation of the underlying claims – consisting only of the prevailing party’s petition to confirm, an opportunity for the non-prevailing party to challenge the confirmation, and, subject to the court’s discretion, a hearing.

A non-prevailing party liable under an arbitration award may challenge its confirmation and subsequent enforcement by moving for a court of proper jurisdiction to modify or vacate the award. Refer to the Trends and Developments article of the Chambers Dispute Resolution 2026 Guide for the USA (nationally) for a more in-depth discussion on this point.

A foreign judgment is treated differently. Once domesticated through the procedures described in 9.1 Enforcement of Judgments, the foreign judgment may be enforced and objected to on the same grounds as a domestic judgment, as dictated by the law of the state in which the foreign judgment was domesticated.

At the federal level, there is no overarching legal framework that regulates the use of artificial intelligence. However, Congress, the legislative body that makes national law, has passed a few piecemeal laws that target specific usage of artificial intelligence. For example, in 2025, Congress passed the TAKE IT DOWN Act, which criminalises the publication of non-consensual AI-generated explicit images (“deepfakes”) and requires online platforms to remove such content. Congress has considered, but not effectuated into law, the CREATE AI Act, which would codify the National AI Research Resource (NAIRR) with the goal of advancing AI discovery and innovation. Additionally, the National Policy Framework for Artificial Intelligence (20 March 2026) advocated for “minimally burdensome” state AI regulation, while preserving certain state authority such as with regards to protecting children and prohibiting fraud.

More regulatory activity is happening at the state-level. Some state governments, including those governing California, Nevada, Texas, and Colorado, are spearheading artificial intelligence regulation. These states are passing narrow legislation that focuses on issues such as increasing transparency in AI usage, prohibiting deepfakes, and advancing users’ safety and privacy. No state has yet adopted a comprehensive regulatory framework.

National dispute resolution organisations in the United States, such the AAA and JAMS, have embraced the use of artificial intelligence by third-party neutrals and parties. JAMS has adopted Rules Governing Disputes Involving Artificial Intelligence Systems, which applies to arbitral proceedings when the parties agree to its application, or, in the absence of such agreement, when the parties’ disputes or claims are AI-related.

The AAA offers the “AI Arbitrator” as a new service. The AAA’s AI Arbitrator is a system into which the parties, if they so agree, submit their claims and evidence. Artificial intelligence summarises each party’s claims, analyses supporting evidence, applies governing law, and proposes an award. The recommended award generated by the AI arbitrator is then reviewed by a human arbitrator who reviews and revises the recommendation then issues a final, binding award. Separately, the AAA encourages its third-party neutrals and staff to use artificial intelligence tools to assist in their work, but clarifies that arbitrators cannot delegate decision-making authority to AI. Overall, dispute resolution organisations appear to embrace the use of artificial intelligence as a tool to assist arbitrators and parties in resolving disputes.

Federal courts, as opposed to dispute resolution organisations, have been slower to embrace the use of artificial intelligence, but recognise it as a transformative force in the United States’ federal judicial system. In fact, the Administrative Office of the federal court system has implemented an Artificial Intelligence Task Force, which developed interim guidance on the use of AI that aims to allow for its experimentation while preserving the integrity of the federal judicial process. The interim guidance issued by the AI Task Force recommends extreme caution in using AI, suggesting that a human verify all AI-generated content and that its use be disclosed.

State courts are developing more concrete rules, but they vary widely by state and individual judge. For example, in October 2025, New York issued a set of internal rules governing the use of AI by state judges and staff. The rules permit judges and staff to use pre-approved generative AI, but require all employees, including judges, to attend mandatory training. By comparison, the California State court system issued a rule requiring all California State courts to elect whether they will prohibit or permit their employees to use AI. As a result, AI usage varies greatly across the State of California, differing from one jurisdiction to the next.

In the coming years, states and the federal judiciary are likely to continue issuing guidance and adopting rules that cautiously permit the use of AI for limited purposes. Ultimately, however, courts are likely to remain exceedingly alert in its use to prevent AI from replacing a judge’s decision-making authority. Indeed, there have been cases of misuse of AI even by judges, resulting in incorrect information being presented. The need for caution and responsible use cannot be over-emphasised.