Overview
With the increase
in litigation costs and court congestion, individuals and business entities
are turning to alternative dispute resolution or "ADR" to resolve their disputes.
While ADR denotes a variety of techniques to resolve disputes outside the
courtroom, the following proceedings typically come within the rubric of
"ADR": negotiation, mediation, neutral fact finding, early neutral evaluation,
mini-trials, summary jury trials, arbitration and private judging. Although
each of these ADR methods has its own characteristics, they generally enable
the parties to:
Resolve their
dispute in a confidential setting;
Establish deadlines and procedural rules governing the proceedings;
Select the presiding official or "neutral"
Contain litigation costs; and
Maintain on-going business and personal relationships.
ADR may not be
appropriate in all settings, for example, where:
The parties want
a jury trial;
The dispute turns on witness credibility;
Public resolution of a novel legal issue (e.g. legal precedent) is needed
to discourage similar claims;
One wants to preserve full rights of appeal; or
The possibility of settlement is so slim that ADR may only achieve educating
the other side about the weaknesses of one's case.
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Mediation
Mediation is a non-binding structured process in which the mediator helps
the participants reach a negotiated settlement of their differences. The
mediator may use various techniques to help the parties reach a settlement,
but does not have the power to render a decision. In its traditional format,
the mediator is careful not to interject his or her opinion on the merits
of the dispute. Instead, the mediator acts as a facilitator in helping the
participants themselves arrive at a solution.
Although mediation
is generally voluntary, it may be required in certain substantive cases.
For example, recent legislation requires the Los Angeles Superior Court to
refer all cases where the amount in controversy does not exceed $50,000 to
mediation or arbitration. Similarly, disputes between schools and handicapped
persons, certain labor disputes involving public entities and their employees,
and child custody cases must be mediated.
Mediation allows
the parties to preserve their business relationship and provides the parties
a neutral, non-adversarial forum for evaluating the strengths and weaknesses
of their respective positions. Mediations are confidential and can afford
a more creative resolution of problems because the parties control the process.
Sometimes mediation is combined with other ADR techniques. For example, the
parties can agree to "med-arb". Med-arb typically involves an agreement first
to mediate a dispute and then to arbitrate the dispute before the same neutral
who served as the mediator if the mediation is unsuccessful.
Mediation, however,
may not be advantageous where the parties are of substantially unequal bargaining
strength because the stronger party may force a compromise on the weaker
party. Where there is no genuine possibility of settlement, mediation may
just educate one's "adversary" without resolving the dispute. Because of
the confidentiality of mediation proceedings, mediation also may not be
appropriate in test cases.
Post
Mediation Conferences
Long-term mediation sessions, usually about 6 sessions, for couples going
through divorce. These sessions are offered to provide strategies and techniques
for couples unable to sustain their mediation agreements.
Arbitration
Arbitration is perhaps the most well- known ADR technique and generally denotes
submission of a dispute to a third-party for binding or non-binding resolution
after a hearing in which each side presents evidence and argument of counsel.
In this way, arbitration differs from mediation and other structured settlement
techniques, which are far less adversarial. Arbitration can be voluntary
or mandatory as, for example, in a fee dispute between an attorney and his
client where the client requests arbitration.
In voluntary
arbitration such as where the parties contractually agree to arbitrate disputes
arising under a contract, the parties are able to define the procedures that
will govern the arbitral proceedings, including what, if any, discovery will
be allowed or whether traditional evidentiary rules will apply to the arbitral
proceedings. If the par ties fail to define the procedures governing the
arbitration, the procedures set forth in any applicable arbitration statute
govern. Typically, an arbitrator is not bound to follow substantive law,
but may also employ concepts of equity and justice, business practice and
whatever technical expertise he or she brings to the process. If confirmed
by the court, an arbitration award is enforceable like any court judgment,
but unlike a judgment rendered by a court, appeal from an arbitral award
is generally not available for errors of law.
Arbitration can
have distinct advantages. It allows the parties to select the decision-maker(s)
as well as the procedural rules governing resolution of their dispute. Unlike
many other ADR techniques, credibility of witnesses can be adjudicated. The
proceedings occur at a place and at times mutually convenient to the parties
and are not subject to delays imposed by a trial court's crowded docket.
In addition, arbitrations are typically confidential.
Arbitration may
also have disadvantages. Some argue that arbitrators tend to "split the baby''
in trying to give something to all parties. Discovery is generally limited,
which may disadvantage a party needing compulsory process to obtain information
to support his case. Arbitration will not be desirable if one wants a jury
trial. Finally, as noted above, arbitral awards are usually not appealable
except for fraud, corruption and defects aimed at the process that rendered
the award as opposed to the substance of the award.
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