Arbitration | Mediation | Mediated Divorce | Negotiation/Facilitation
The Benefits of Alternative Dispute Resolution
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 the pressure. In considering all these circumstances, exploring options other than litigation can be a worthwhile pursuit.
"Alternative Dispute Resolution (ADR)" is the term used to describe all the other options available for settling a dispute which once had to be settled in court. ADR processes such as arbitration and mediation are less formal than court and provide opportunities for parties to reach an agreement using a problem-solving approach rather than the more adversarial approach of litigation.
For parties to the dispute, these options:
- are highly cost effective;
- take less time to resolve;
- foster future positive relationships;
- are rated as highly satisfactory;
- provide more control over the outcome.
For attorneys, benefits in addition to those mentioned above include:
- shorter time for disposition;
- quicker results for clients;
- ability to represent or advise more clients;
- fewer fee disputes;
- greater client satisfaction.
ADR can reduce the time, expense and stress of litigation by using the most appropriate dispute resolution method to settle the case. 97% of civil cases settle before trial, so it's worth considering these alternatives early in the process
In arbitration, each side in the dispute presents its case, including evidence, to a neutral third party called an "arbitrator," rather than to a judge. The arbitrator, who typically is an attorney, issues an award based on the evidence just as a judge would, usually within 10 days. Although evidence is presented, arbitration is a less formal process than litigation. Arbitration can be initiated pursuant to an arbitration clause in a contract, by court order (in limited circumstances) or by consent of the parties.
Arbitration may be "binding" or "non-binding" depending on what the parties agree to before beginning the process. "Binding arbitration" means the parties are waiving their right to a trial and are accepting the arbitrators award as a final decision.
"Non-binding arbitration" means that the participants in the case are not required to accept the arbitrator's award; they may request a "trial de novo" which returns the case to the Court's calendar as if the arbitration had not occurred.
Parties may also request a form of binding arbitration called "baseball arbitration." In these cases, parties in the dispute make their own recommendations to the arbitrator for an award. The arbitrator is then required to choose one side's proposal and can make no changes or modifications in the proposals. (In other arbitration sessions, the parties do not make recommendations for awards; the arbitrator makes an independent decision). Because no changes can be made in the proposed awards, parties are encouraged to make reasonable proposals.
In some cases, parties will elect to present their case to a panel of arbitrators (typically three) instead of just a single arbitrator. Panel arbitrations are often perceived as more thoroughly considered than if a single person decided the case. However, they are more costly because three arbitrators must be paid. The three arbitrators can be neutral, or two of the arbitrators can be party arbitrators (one representing each side to the litigation) with a third neutral arbitrator (who typically acts as chairman).
In mediation, a neutral third party called a "mediator" helps participants in the dispute create their own resolution. Unlike an arbitrator, the mediator makes no decision or findings about the facts of the case and makes no award. Rather, the mediator helps facilitate a discussion in which the parties reach a mutually agreed upon settlement. Therefore, mediation allows for more creative resolutions to disputes than other ADR processes. Mediation may be either "mandatory," that is, ordered by the Court, or "voluntary," requested at any time by the parties to the dispute. Mediators are often attorneys, but are not required to be so.
Mediators foster communication among the parties to:
- clarify issues, interests and needs;
- explore the merits of each party's positions;
- identify possible options for resolution.
One of the primary goals of mediation is enhancing the future relationship of the parties involved in the dispute, so the process is less adversarial and formal than either litigation or arbitration. For example, the rules of evidence and formal court procedures do not apply to mediation.
Sometimes mediation does not result in an agreement or resolution. In these cases, the parties have the right to return to court for a litigated decision. If the case returns to court, the mediator cannot be called to testify or produce notes or records of the mediation, nor are the mediation discussions/evidence admissible, as the rules of evidence are not the same for mediation as they are for litigation.
Survey results of participants in mediation consistently demonstrate a high satisfaction rate with both the results of the mediation and with the process itself. Because 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.
Divorce has been identified as one of the top five most stressful times in a person's life. Couples facing divorce experience a flood of emotions, including grief, anger, fear, insecurity and uncertainty about what to do. This emotional state often leads to rash actions which can make the divorce far more costly and difficult, and sometimes permanently damage what is left of the relationship. A litigated divorce typically costs $50,000 - $100,000 or more and can leave emotional scars lasting four to eight years or longer. If children are involved, it can strain the co-parenting relationship and cause emotional trauma for the children. For these reasons, litigated divorce should be avoided if at all possible.
Mediated divorce is an alternative to litigated divorce. Mediated divorce allows the parties to settle any or all issues in the divorce, without resorting to costly and stressful litigation. A neutral mediator (or man/women co-mediation team) works with the parties over one or more 1/2 day sessions in the mediator's office to identify/prioritize issues, discuss points of view, consider/negotiate alternatives, and achieve mutually agreeable solutions. Sometimes the mediator meets with the parties separately, and sometimes together. If the parties have attorneys they can be present, but often no attorneys are involved. Mediation can be used to resolve the entire divorce (even including filing legal paperwork) or to resolve a specific issue. Mediation also can benefit the parties by dealing with emotions, improving communication, and promoting healing/forgiveness (a therapist may also help with these aspects of the divorce).
Mediated divorce may be the best option for getting a divorce if :
- the parties have been married more than five years, have assets, or have minor children;
- even though they are estranged, the parties wish to reach a fair resolution of divorce matters, without resorting to litigation;
- the parties cannot afford or do not wish to pay for an expensive litigated divorce, but can afford a comparatively modest mediation fee.
At times, people face a conflict, business problem or difficult discussion/negotiation that they do not feel comfortable handling on their own. A negotiator or facilitator can help address these situations quickly and effectively, without the need for legal action.
In negotiation, the party hires a representative to discuss their problem, establish priorities and possible solutions, and to negotiate a resolution with the other party. In addition to receiving expert negotiating assistance, the party is relieved of the stress and burden of handling it themselves. If the matter cannot be resolved, the party will be referred to an appropriate litigating attorney, if desired. Negotiation engagements can be billed on an hourly basis, or in some cases on a "success fee" basis.
In facilitation, the facilitator communicates back and forth with the parties over a period of time, discussing alternatives, until agreement is reached. The techniques used by the facilitator are similar to those of a mediator, except that the process is less formal and takes place over time as opposed to in a closed mediation session.