Alternative Dispute Resolution (ADR) Tactics
More than 90% of lawsuits in California, and here in the San Diego region settle before going to Court. Our approach to litigation begins with effective and leveraged negotiation. What happens when the parties are unable to negotiate a resolution to a dispute, but wish to avoid the time constraints and expense of open litigation? Most contracts specify that the parties attempt to resolve disputes through mediation or arbitration prior to litigation in a Court of Law. Many of our clients are curious about the concepts of “Mediation” and “Arbitration.” What is the difference between the two Alternative Dispute Resolution (ADR) tactics, and when should they be considered? We have discussed the basics of ADR, but many clients want to know more about the process involved in either a mediation or an arbitration. What does a client need to know about each of these alternatives to litigation?
Mediation is a Facilitated Negotiation
Often, when the parties cannot negotiate a resolution to a dispute or a lawsuit on their own, they turn to an alternative known as “mediation.” Mediation is not a court, and there is no judge or magistrate. The process is presided over by a “mediator” who is responsible for creating a productive and effective atmosphere where the parties can work together to resolve the dispute. The parties select a neutral third party, who is often an experienced attorney or a retired judge. Each party presents their side of the dispute to the mediator, who helps to identify the strengths and weaknesses in each position.
The mediator works to facilitate a process where the areas of principled disagreement are brought into focus, and each party gains a more complete understanding of the legal issues at hand and the position of the other point of view. Effective mediation helps the parties to realize that the dispute is closer to resolution than might be apparent through the lens of emotion. Hearing from a neutral and experienced third party often helps the parties to find common ground and develop a resolution that meets their needs, while avoiding the time and expense of going to a Court of Law. Most Courts require the parties to enter into mediation or a settlement conference prior to going to trial. What happens in mediation is confidential, and the mediator cannot be compelled to testify during any ensuing litigation. The key to most successful mediations is a willingness on the part of the parties to enter into the process in good faith, with a mindset toward resolution.
How is Arbitration Different than Mediation?
Arbitration is a much different legal process than mediation. While mediation focuses on facilitation without judgment, an arbitration is designed to resolve a dispute by establishing a third party or “neutral” as a private judge (or in some cases a tribunal of 3) to hear the case and issue a judgment. The parties surrender their authority to resolve the dispute to the “arbitrator” or “tribunal” and the result of the arbitration will either be “binding” or “non-binding.” In a “binding” arbitration (the most common) the parties agree to abide by the “award” – the decision issued by the arbitrator after both sides have had the opportunity to present their case.
Arbitration usually begins with the lawyers from each side submitting a brief to the neutral arbitrator. Once the arbitrator has had the opportunity to review both points of view and all applicable governing laws, the arbitrator presides over a hearing where both sides are able to present testimony and evidence. Arbitration is a broader process than a court of law, and the arbitrator has more freedom to decide the case and is not restricted by California’s rules of evidence. The arbitrator can decide the case based upon a broader concept of fairness, and the ruling of the arbitration is usually not appealable unless one can demonstrate fraud or outright corruption. This is why it is so important to work with experienced attorneys at the Watkins Firm to ensure that the selection of the arbitrator is carefully managed. It is important to ensure that the candidate is expert, capable and has a fair track record and reputation for neutrality and appropriate rulings.
Arbitrations are private, and the general public is not admitted. Records are sealed and confidential. This, along with the greatly reduced timeframe and cost make arbitration an attractive alternative in many cases to business litigation.
Contact an Experienced Dispute Resolution Law Firm with Experience in Mediation and Arbitration
The key to the successful resolution of any dispute is experience and expertise. The attorneys at the Watkins Firm have represented clients through negotiations, mediations, arbitration and business litigation for decades. We protect our clients interests and work to achieve their goals and objectives for the resolution of the dispute. If you are involved in a business or contract dispute, and would like to learn more we invite you to contact us to schedule an appointment, or call for a complimentary and substantive consultation at 858-535-1511. Learn more about negotiation, mediation and arbitration and select a legal partner who can represent you effectively at every stage of the dispute resolution process.