Alternative Dispute Resolution

Alternative Dispute Resolution

1. Mediation

   • A Mediator is the person who runs the mediation and attempts to help both sides come to an agreement.
     • Qualifications to be a mediator can vary by State
       • In many States, a court mediator will have formal training or certifications, while in a private mediation that may not be the case,
         • Mediators should also have 10 years in work experience, relevant to their speciality. This can help them understand the process or issues the participants are discussing.
           • Mediators must be Impartial. Should there be a conflict of interest, the mediator must remove themselves for the sake of the process and to avoid the appearance of any favoritism.
             • Mediators must be trustworthy and have a good reputation in the industry. Since they are selected by both parties, this sets the tone for the duration of the mediation. .
               • Communication skills are essential to the success of any mediator, not only verbal, but non-verbal communication. This will keep the dialogue open and the mediator aware of when to step in.
   • Advantages of Mediation
     • Mediation process and results are confidential, while not all arbitrations are. Both sides can freely talk to the mediator without having their statement used against them.
       • From the beginning of the process, both sides play an active role in solving the problem. Both sides are able to attempt to find a mutually beneficial solution, rather than being dictated what the outcome should be as it would be in arbitration or litigation.
         • When looking for a quick resolution, mediations require less time than arbitration or litigation. The cost involved in mediation is also much less due to the informal nature of the process and the timeframe that is involved.
   • Disadvantages of Mediation
     • Mediation requires open and active participation as well as a desire for resolution. This is sometimes not the case for all participants. In arbitration or litigation, the facts presented are what speak for themselves. No additional context is provided.
       • If mediation fails, there is no appeals process as in arbitration or litigation. After the failure of mediation, the next step may be arbitration or litigation, which adds additional cost to the process.
         • The lack of formal rules may make it more difficult to reach an agreement as the process will only be as effective as the mediator. In arbitration or litigation, all parties are held to strict procedures and rules for behavior.

2. Arbitration

   • Arbitrator is a person who acts as a judge to resolve issues shat could not be worked out in mediation.
     • Arbitrators should be attorneys with a minimum of 10 years experience, this will help provide background in the process to keep in compliance with rules and regulations.
       • Relevant additional education and certifications in their fields of expertise to allow them to better understand testimony and issues brought before them
       • Arbitrators must maintain confidentiality as the proceedings are private and cannot be discussed outside of the area. Should an arbitrator break that, they may not be find repeat business.
         • Communication and projection of authority is also necessary to maintain decorum in the proceedings and to help build confidence in the process.
           • A strong commitment to the process and a sense of fairness to help both parties resolve the issue and prevent further issue. This will help the arbitrator remain objective and goal focused.
   • Advantages or Arbitration
     • Arbitration is more formal than mediation with a more predictable cadence to the process. This allows both sides to understand what is coming next and how to prepare.
       • Arbitration is faster and less expensive than litigation. The arbitrator plays a role similar to the judge, and keeps the momentum moving forward.
         • As in mediation, arbitrators are selected by both parties, which gives the participating parties "buy in" into the process.
   • Disadvantages or Arbitration
     • If court ordered, the arbitration may be binding if court ordered. This could also mean that there is no appeals process, so both sides have to accept the decision.
       • While still formal, not all of the same rules apply as in litigation, the ability to cross examine other witnesses is not available, which may leave ambiguity about certain items in the testimony.
         • All decisions are made by the arbitrator, this is limiting since in litigation, a jury may be more impartial and balance each other's shortcomings.