Was that MEDIATION, ARBITRATION or VEGETATION?

Parties to lawsuits become increasingly anxious in resolving their legal disputes as the disputes drag on and become more expensive. This has lead to other methods to resolve legal disputes; collectively known as Alternative Dispute Resolution (ADR). Usually ADR is initiated after litigation has commenced because the court has to have jurisdiction [authority] over the parties and have jurisdiction [authority] over the subject matter of the law suit such as family law matters, breach of contract and personal injury claims, etc.

Mediation: is the fastest growing ADR method. Unlike litigation, mediation provides a forum in which parties can resolve their disputes with the help of a skilled neutral third party. Mediation depends upon the commitment of the parties to want to resolve their differences. Clearly, if one party is committed to resolving differences and the other party wants to litigate; mediation will not succeed. The mediator, never imposes a decision upon the parties. The mediator’s job is to keep the parties talking and to help move them through the more difficult points of contention. A mediator typically takes the parties through five stages:

1. First Stage: the mediator gets the parties to agree on procedural matters, such as by stating they are participating in the mediation voluntarily, setting the time and place for future sessions, and signing a confidentiality agreement. One valuable characteristic of this stage is the parties, who often have been unable to agree on anything, begin a pattern of saying yes.
2. Second Stage: the parties exchange initial positions, not by way of lecturing each other or the mediator but in a face-to-face exchange with each other; if it is possible and the parties are not completely full of contempt for each other. If they absolutely despise each other then go to stage three. Often in stage two, this is the first time each party hears the other’s complete and uninterrupted version. The parties may begin to see the story has two sides.
3. Third Stage: if the parties have agreed to what is called a caucusing procedure, the mediator meets with each side separately in a series of confidential, private meetings and begins exploring settlement alternatives, and assist in some “reality testing” of their initial demands. This process, sometimes called “shuttle diplomacy”, often uncovers areas of flexibility the parties could not see before.
4. Fourth Stage: when the gap between the parties begins to close, the mediator may carry offers and counteroffers back and forth.

Finally, when the parties agree upon the broad terms of a settlement, they formally reaffirm their understanding of the settlement, complete the final details, and sign a settlement agreement. It is essential to note mediation permits the parties to retain control of the process at all times and strike their own bargain.

Another advantage is when the parties reach agreement in mediation, the dispute is over—they face no appeals, no delays, no continuing expenses, nor the unknown risks such as in a trial.

II. Binding Arbitration: very closely resembles traditional litigation because a neutral third party or panel hears the litigating parties’ arguments and imposes a final, binding decision that is enforceable by the courts; usually however the proceedings are typically less formal than in a court of law. Another difference, unlike court decisions; an arbitration usually offers no appeal process. Thus, when an arbitration decision is issued, the case is ended.

III. Early Neutral Evaluation:

An early neutral evaluation (ENE) is used when either party to a dispute seek the advice of an experienced individual –  usually an attorney, concerning the strength of their case. An objective evaluation by a knowledgeable outsider can move parties away from unrealistic expectations and also provide more insight into their cases’ strengths and weaknesses. Of course, the success of this technique depends upon the parties’ faith in the fairness and objectivity of the neutral third-party.

Please note by reading the information herein; no attorney-client relationship has been created. Moreover, the information provided herein is not to be relied upon as legal advice for your specific legal needs. Should you have legal questions feel free to contact The Law Offices Morton J. Grabel in Temecula at (951) 695- 7700. Mort, originally from Philadelphia PA, attended an ABA Law School, has an MBA, a Real Estate Broker’s License, a CA Nursing Home Administrator’s License and is a member in good standing of various local Chambers of Commerce.