Why Use Mediation or Arbitration to Settle Your Case?
In short: TIME, STRESS and MONEY. 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
such pressure.
Survey results of participants in
mediation consistently demonstrate a high satisfaction rate with
both the results of the mediation and with the process itself.
In mediation, 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 positive relationships.
Readers unfamiliar with methods of
Alternative Dispute Resolution will find the following short
videos particularly useful to get an overview...
What are the different types of Alternative Dispute
Resolution?
A majority of our attorneys are state
certified mediators
and arbitrators,
though many also offer further specialized ADR services.
Early Neutral Evaluation
An early neutral evaluation (ENE) is used when one or both
parties to a dispute seek the advice of an experienced
individual, usually an attorney, concerning the strength of
their cases. An objective evaluation by a knowledgeable
outsider can sometimes move parties away from unrealistic
positions, or at least provide them with more insight into
their cases' strengths and weaknesses. Of course, the
success of this technique depends upon the parties' faith in
the fairness and objectivity of the neutral third-party, and
their willingness to compromise.
Med-Arb A short-hand reference to the procedure
mediation-arbitration. In med-arb, the parties agree to
mediate with the understanding that any issues not settled
through the mediation will be resolved by arbitration using
the same individual to act both as mediator and arbitrator.
However, that choice may have a chilling effect on full
participation in the mediation portion. A party may not
believe that the arbitrator will be able to discount
unfavorable information learned in mediation when making the
arbitration decision.
Facilitation
In the context of U.S. alternative dispute resolution (ADR)
facilitation (or group facilitation) is generally considered
to be a process in which a neutral person helps a group work
together more effectively. Facilitators may work with small
groups within an organization, or with representatives of
different organizations who are working together in a
collaborative or consensus-building process. The
facilitator, in this context, may be internal or
external (that is, brought in from an outside organization).
Either way, he or she must be acceptable to all members of
the group. Such facilitators are process leaders only --
they have no decision-making authority, nor do they
contribute to the substance of the discussion. The
facilitator's job is to lead the group process; to help them
improve the way they communicate, examine and solve
problems, and make decisions. Good facilitators can help
groups stay on task, be more creative, efficient, and
productive than they would be without such help.
Fact Finding
Neutral fact-finding involves the use of a neutral third
party who investigates/determines a disputed fact. This
process is usually used for technical issues or in instances
when significant factual issues are part of a larger
dispute. Parties may negotiate to be bound or not bound by
the fact-finding results.
Discovery Referee
Discovery Referees are most
commonly used in complex matters where there is a
disagreement between the parties relating to the scope and
subject matter of discovery. These disputes can be very time
consuming and emotional. To improve efficiency, the trial
court has the jurisdiction to appoint a referee if the judge
feels that it is warranted by the situation. The process may
be "voluntary" or "involuntary" and is
generally governed by the code of procedures by state
courts. A reference is voluntary when the parties
and their counsel agree that the appointment of a referee is
necessary. Often they will also have agreed to who shall
serve as the referee. The referee need not be a retired
judge, but almost always is at least a lawyer due to the
nature of the appointment and the knowledge necessary to
fulfill those duties. A reference is involuntary
when the judge independently determines that a referee is
needed. The parties may still have the option of selecting
their referee, but the judge will often appoint one if the
parties can not agree on someone who is mutually acceptable.
Mini Trial (Mock Trial)
The minitrial, a development in
ADR, is finding its greatest use in resolving large-scale
disputes involving complex questions of mixed law and fact,
such as product liability, massive construction, and antitrust cases. In
a mini-trial, each party presents its case as in a regular
trial, but with the notable difference that the case is
"tried" by the parties themselves, and the
presentations are dramatically abbreviated.
In a minitrial, lawyers and experts
present a condensed version of the case to top management of
both parties. Often, a neutral adviser - sometimes an expert
in the subject area - sits with management and conducts the
hearing. After these presentations, top management
representatives - by now more aware of the strengths and
weaknesses of each side - try to negotiate a resolution of
the problem. If they are unable to do so, they often ask for
the neutral adviser's best guess as to the probable outcome
of the case. They then resume negotiations.
The key to the success of this
approach is the presence of both sides' top officials and
the exchange of information that takes place during the
minitrial. Too often, prelitigation work has insulated top
management from the true strengths and weaknesses of their
cases. Mini-trial presentations allow them to see the
dispute as it would appear to an outsider and set the stage
for a cooperative settlement.
Special Master
A Special Master, in law, is an
authority appointed by a judge to make sure that judicial
orders are actually followed. They are employed in complex
civil actions where their expertise is needed to assist the
court. Special Masters can also be established by the
congress to assist with the admistrative claims against the
government. Special Masters are appointed pursuant to Rule
53 of the Federal Rules of Civil Procedure. Special Masters
are compensated for their work. The rate of compensation is
set by the court and the parties pay the costs. In US, cases
involving Special Masters often involve situations where it
has been shown that governmental entities are violating
civil rights. Reference of a case to a master shall be the
exception and not the rule.
The use of masters is "to aid
judges in the performance of specific judicial duties, as
they may arise in the progress of a cause, and not to
displace the court." [La Buy v. Howes, 352 U.S. 249,
256 (U.S. 1957)].
