Alternative Dispute Resolution

Alternative Dispute Resolution

1. Mediation

   • With mediation, a third party representative is brought in to help.  The mediator's focus is to help facilitate communication and resolution.  The mediator isn't part of the resolution , they just ensure the communication is effective during this process.  Mediation is best used for non-violent cases such as wrongful terminations or sexual harassment.  Union representatives use mediation often to resolve workplace disputes. 
   • Qualifications
     • Training
       • Approved mediation training of between 20-40 hours.
     • Experience
       • This varies by state but require some minimum amount of mediation experience performed independently or supervised. 
     • License/Certification
       • Some states require license or certification in mediation. 
     • Bachelor's degree
       • Bachelor's degree in conflict resolution, public policy or law.  Some states may require Master's degree or Juris Doctor.
     • Skilled in decision making, listening and critical thinking
   • Advantages
     • Reasonable timetable for resolving dispute
       • With mediation, you aren't controlled by the court system on when you can schedule.  This allows both parties to come up with a schedule that works for all.
     • Less Expensive
       • With mediation, it's less expensive than typical lawsuit as there are no attorneys or courts involved. 
     • Greater flexibility and control of solution
       • With mediation, all parties are part of the solution.  Solution is reached are more agreeable to both parties as the resolution was agreed voluntarily by both. 
   • Disadvantages
     • Doesn't always result in settlement agreement
       • If both parties don't agree on a resolution, it could go to court.  This could put one or both parties at a disadvantage since they have shown their "ammunition".
     • Lack of procedural and constitutional protection
       • When in court, parties are protected by state and federal laws.  When in mediation, parties are unprotected so if they lack experience, they could end up unprotected. 
     • No formal discovery process
       • Party must rely on other party's "good faith" in disclosing all the information.

2. Arbitration

   • Arbitration involves settling a legal dispute without going to trial.  During arbitration, a third party listens to both sides of a legal disagreement. With documents provided and the oral statements of each person involved, the arbitrator will issue a resolution.  Arbitration is used often with divorce settlement, some union disputes and person injury disputes. 
   • Advantage
     • Fairness
       • Fairness as both parties agree to the arbitrator, this also allows parties to select the arbitrator with experience in their situation. 
     • Faster and confidential
       • Arbitration is faster because there isn't a trial date as it's less formal and more flexible for scheduling.  Arbitration is more private than trial so results are confidential, results are final as there is no appeal process. 
     • Less Cost
       • Cost is less since there are no expert witnesses or extensive legal preparation. 
   • Disadvantage
     • Lack of formal evidence process
       • There is no formal evidence process so both parties must rely on the arbitrator to sort out the evidence.
     • Lack of formal appeal process
       • There is no formal appeal process so decisions are final even if one party feels the outcome was unfair.
     • Lack of transparency
       • Arbitration hearings aren't public so may put one side at a disadvantage with the lack of transparency. 
   • Qualifications
     • Bachelor's degree
       • Being arbitrator requires a Bachelor's degree, graduate in law or MBA common. 
     • License attorney
       • Some states require an arbitrator to be a license attorney.
     • Experience
       • 5-10 years experience practicing law or working in related industry.
     • Skilled in decisiveness, strong reasoning, and communication skills
     • Graduate program
       • Graduate programs in conflict resolution or law