Mediation offers parties in conflict, or involved in a lawsuit, a unique opportunity to resolve their dispute by agreement, without the necessity of going to court. This type of alternative dispute resolution (referred to as ‘ADR’) is facilitated by a mediator, who assists the parties in evaluating the strengths and weaknesses of their case or position, in order to find a solution that works for everyone. The mediation process is completely voluntary and confidential. The parties retain complete control over the terms of the settlement. Voluntary agreements may be drafted as legally binding contracts or stipulations.
A typical mediation session begins with a joint session, at which time the parties present their views of the dispute. After each side has had an opportunity to tell their side of the facts, this is usually followed by an individual session with the mediator. These individual sessions are completely confidential and allow the parties to speak freely to the mediator about aspects of the case they do not want the opposing side to be aware of. These sessions tend to be more relaxed and allow parties in conflict to bring up other issues, which would not be considered relevant in a court proceeding.
Arbitration is less formal than a traditional court trial, yet typically provides the same result. It is an evidentiary hearing where both parties may present witnesses and submit documentary evidence to determine legal rights and responsibilities. The arbitrator, usually an attorney or retired judge with significant experience in the area of law related to the case, reviews the evidence, hears testimony from the parties, and renders a decision within a specified time period. This process is completed without the delays and costs associated with litigation. Most arbitration decisions are legally binding and are enforced in the same manner as a judgment of a civil court. Arbitration judgments are final and not subject to a lengthy appeal process. Types of arbitration include:
Without disclosure to the Arbitrator, parties agree in writing to a minimum and maximum arbitration award. After hearing the case, the decision of the arbitrator is binding, but can be no greater than or less than the minimum and maximum amounts agreed upon earlier by all parties. For example, the agreed upon high/low parameters are $5,000.00 (low) and $50,000.00 (high). If the Arbitrator awards $65,000.00 to the Plaintiff, the award is “capped” at $50,000.00 (high parameter). Alternatively, if the Arbitrator awards $1,000.00, the Plaintiff would receive $5,000.00 (low parameter). Any award rendered between the High/Low parameters would be the figure actually awarded. This type of arbitration offers a “safety net” to all parties. High/Low parameter agreements are often determined by the last offer and demand made between the parties.
A panel of three Arbitrators conducts an arbitration hearing, reviews submitted evidence, and collectively makes a final decision or award.
Case Evaluation and Consultation
Case evaluation and consultation offers a comprehensive file review, and a fresh, unbiased perspective of the claim. These services also provide in-depth analysis of the strengths and weaknesses of both sides of the dispute, along with fair settlement value ranges. I often offer suggestions that are very helpful or act as a checks and balances on the current assessment/evaluation of the pending matter. On a few occasions, I’ve been hired as a consultant to participate in the actual mediation to give insight as to the approach that the mediator may take with the other side.
Effective negotiation is the least expensive form of file resolution. Multiple factors affect the value of a claim, not the least of which is a jury’s ignorance to the proper valuation of monetary damages. The vast majority of all civil suits are settled prior to trial.