When is Alternative Dispute Resolution Appropriate For You?
The main difference between arbitration and mediation is that an arbitrator hears evidence and makes a decision, whereas a mediator assists in the negotiation of a settlemet of the dispute.
Disputes are a part of our lives--in both the personal and professional arenas. Many are aware of alternative dispute resolution methods like mediation as options for divorcing couples, but they are also powerful tools in the areas of administrative, health care, government, and employment law.
As a business owner, you experience conflicts with competitors, vendors, or even your own employees. Healthcare providers are subjected to disagreements over their scope of practice, or licensing requirements. If you have a conflict that cannot be resolved without professional help, an expensive and lengthy public trial is not your only option. Mediation and arbitration are shorter, more efficient paths to legal dispute resolution.
The advantages to engaging in alternative dispute resolution tactics like mediation and arbitration are numerous. Some are obvious: you save money, time, and even your reputation by avoiding a trial. There are less obvious benefits as well, such as the reduction in stress you feel when a difficult situation is finally resolved.
Is Mediation An Option For You?
In the process of mediation, a mediator facilitates the course of solving your dispute on your own. Typically a retired judge or experienced litigator, he or she offers his or her skills and experiences as a non-judgmental guide in helping both parties come to a mutually satisfying resolution. Instead of the battleground that a trial can become, mediation helps all parties reach an agreement in an environment that is collaborative and supportive.
A less common form of mediation is binding mediation, by which it meant that the parties would first work with a jointly selected mediator to try to reach a settlement. But if no settlement were reached over the course of the mediation (which could be a set number of hours or days), the mediator would decide the claim and determine damages based upon the information presented and argued to it over the course of the mediation.
You may still wish to have your own attorney when participating in the mediation process. Some communication with the mediator will occur with the opposing party present, and some will be in individual sessions. A written final decision will be signed by both parties.
Mediation does require an investment of both time and money, but it ends disputes with less pain, time, and cost than a traditional trial.
When Should You Consider Arbitration?
If mediation fails, you still may be able to avoid the courtroom. Arbitration is a lot like a trial but without a jury and the formalities of court: Both parties present their cases, with representation from their counsel, and a neutral party adjudicates the dispute, rendering a decision.
Arbitration can be binding or nonbinding:
Binding arbitration means the decision made by the arbitrator is final and binding. It cannot be overruled by a judge, and it dismisses or avoids a related lawsuit.
Nonbinding arbitration leaves the parties with the option to finally take the dispute to litigation.
Arbitration can be more flexible in both process and evidence than a formal trial. It is also quicker, private, and more informal than a jury- or bench-trial.