Arbitration | Mediation | Mediated Divorce | Negotiation/Facilitation
The Benefits of Alternative Dispute Resolution
Going to court, commonly called "litigation," may
decide the dispute, but the process can be time consuming, expensive and emotionally
draining. Fees may escalate well beyond the original estimate, and the time it
takes to reach a decision in our busy courts can be months or even years, sometimes
putting all other plans on hold. Many times, relationships suffer from the pressure.
In considering all these circumstances, exploring options other than litigation
can be a worthwhile pursuit.
Dispute Resolution (ADR)" is
the term used to describe all the other options available for settling
which once had to be settled in court. ADR processes such as
arbitration and mediation are less formal than court and provide
opportunities for parties
to reach an agreement using a problem-solving approach rather than the
approach of litigation.
For parties to the dispute, these options:
- are highly cost effective;
- take less time to resolve;
- foster future positive relationships;
- are rated as highly satisfactory;
- provide more control over the outcome.
For attorneys, benefits in addition to those mentioned above include:
- shorter time for disposition;
- quicker results for clients;
- ability to represent or advise more clients;
- fewer fee disputes;
- greater client satisfaction.
can reduce the time, expense and stress of litigation by using the most
appropriate dispute resolution method to settle the case. 97% of civil
cases settle before trial, so it's worth considering these alternatives
early in the process
In arbitration, each side in the dispute
presents its case, including evidence, to a neutral third party called an "arbitrator," rather
than to a judge. The arbitrator, who typically is an attorney, issues an award
based on the evidence just as a judge would, usually within 10 days.
Although evidence is presented, arbitration is a less formal process than litigation.
Arbitration can be initiated pursuant to an arbitration clause in a contract,
by court order (in limited circumstances) or by consent of the parties.
may be "binding" or "non-binding" depending on what the parties agree
to before beginning the process. "Binding arbitration" means
the parties are waiving their right to a trial and are accepting the
award as a final decision.
arbitration" means that the participants in the case are not required
to accept the arbitrator's award; they may request a "trial de novo"
returns the case to the Court's calendar as if the arbitration had not
Parties may also request a form of binding
arbitration called "baseball arbitration." In these cases, parties
in the dispute make their own recommendations to the arbitrator for an award.
The arbitrator is then required to choose one side's proposal and can make no
changes or modifications in the proposals. (In other arbitration sessions, the
parties do not make recommendations for awards; the arbitrator makes an independent
decision). Because no changes can be made in the proposed awards, parties are
encouraged to make reasonable proposals.
some cases, parties will elect to present
their case to a panel of arbitrators (typically three) instead of just
arbitrator. Panel arbitrations are often perceived as more
thoroughly considered than if a single person decided the case.
However, they are more costly because three arbitrators must be paid.
three arbitrators can be neutral, or two of the arbitrators can be
(one representing each side to the litigation) with a third neutral
(who typically acts as chairman).
mediation, a neutral third party called
a "mediator" helps participants in the dispute create their own
resolution. Unlike an arbitrator, the mediator makes no decision or
findings about the facts of the case and makes no award. Rather, the
mediator helps facilitate a discussion in which the parties reach a
mutually agreed upon settlement. Therefore, mediation allows for more
creative resolutions to disputes than other ADR processes.
Mediation may be either "mandatory," that is, ordered by the Court, or
at any time by the parties to the dispute. Mediators are often
are not required to be so.
Mediators foster communication among the parties to:
- clarify issues, interests and needs;
- explore the merits of each party's positions;
- identify possible options for resolution.
of the primary goals of mediation is enhancing the future relationship
of the parties involved in the dispute, so the process is less
adversarial and formal than either litigation or arbitration. For
example, the rules of evidence and formal court procedures do not apply
does not result in an agreement or resolution. In these cases, the
parties have the right to return to court for a litigated decision. If
the case returns to court, the mediator cannot be called to testify or
produce notes or records of the mediation, nor are the mediation
discussions/evidence admissible, as the rules of evidence are not the
same for mediation as they are for litigation.
results of participants in mediation consistently demonstrate a high
satisfaction rate with both the results of the mediation and with the
process itself. Because the resolution is determined by the parties and
is not imposed on them, settlements achieved in mediation are upheld
easily by the parties, and the agreements reached help to foster future
has been identified as one of the top five most stressful times in a
person's life. Couples facing divorce experience a flood of emotions,
including grief, anger, fear, insecurity and uncertainty about what to
do. This emotional state often leads to rash actions which can make the
divorce far more costly and difficult, and sometimes permanently damage
what is left of the relationship. A litigated divorce typically costs
$50,000 - $100,000 or more and can leave emotional scars lasting four
to eight years or longer. If children are involved, it can strain the
co-parenting relationship and cause emotional trauma for the children.
For these reasons, litigated divorce should be avoided if at all
Mediated divorce is an alternative
to litigated divorce. Mediated divorce allows the parties to
settle any or all issues in the divorce, without resorting to costly
and stressful litigation. A neutral mediator (or man/women co-mediation
team) works with the parties over one or more 1/2 day sessions in the
mediator's office to identify/prioritize issues, discuss points of view, consider/negotiate alternatives, and
achieve mutually agreeable solutions. Sometimes the mediator
meets with the parties separately, and sometimes together. If the
parties have attorneys they can be present, but often no attorneys are
involved. Mediation can be used to resolve the entire divorce
(even including filing legal paperwork) or to resolve a specific issue.
Mediation also can benefit the parties by dealing with
emotions, improving communication, and promoting healing/forgiveness
(a therapist may also help with these aspects of the divorce).
Mediated divorce may be the best option for getting a divorce if :
- the parties have been married more than five years, have assets, or have minor children;
though they are estranged, the parties wish to reach a fair
resolution of divorce matters, without resorting to litigation;
parties cannot afford or do not wish to pay for an expensive litigated
divorce, but can afford a comparatively modest mediation fee.
times, people face a conflict, business problem or difficult
discussion/negotiation that they do not feel comfortable handling on
their own. A negotiator or facilitator can help address these
situations quickly and effectively, without the need for legal action.
In negotiation, the party hires a representative
to discuss their problem, establish priorities and possible solutions,
and to negotiate a resolution with the other party. In addition to
receiving expert negotiating assistance, the party is relieved of the
stress and burden of handling it themselves. If the matter cannot be
resolved, the party will be referred to an appropriate litigating
attorney, if desired. Negotiation engagements can be billed on an
hourly basis, or in some cases on a "success fee" basis.
the facilitator communicates back and forth with
the parties over a period of time, discussing alternatives, until agreement is reached. The techniques
used by the facilitator are similar to those of a mediator, except that the process
is less formal and takes place over time as opposed to in a closed mediation