Alternative Dispute Resolution

Alternative Dispute Resolution

1. Mediation is when a neutral 3rd party comes in to mediate between the different parties and help come to an agreement

   • Five qualifications that are needed for an mediator
     • Good moral character
     • Be able to facilitate conversations between both parties without taking sides
     • Undergo mediation training within the guidelines and be able to observesed with co-mediaters before before being allowed to mediate on their own
     • State certification after completing mediation training, Mediators need to apply for certification
     • Mediators need to have knowledge in theories and ethics, most mediators have an undergraduate degree in law or another related field
   • Three Advantages of Mediation
     • Settlements reached in mediation are more agreeable to both parties than judgements made by court. Settlements that are arrived at through negotiations both parties agree to voluntarily, by going through mediation these negotiations are most likely to be fulfilled because both parties agree to it.
     • Mediation allows the parties to revise and adjust during their time while mediating. While in trial, both parties are only allowed to do as much as court limitations. However, in mediation topics can change, and both sides are able to work together to help solve problems.
     • Mediation is relatively swift. There are many mediators that all can help with mediation. Some mediators work in special fields and are not restrained by court time frames. Since mediatiors can work anywhere, the locations can be set up easily where both parties can work together.
   • Three Disadvantages of Mediation
     • Mediation does not always result in a settlement agreement. Both parties can spend money on mediation, yet if both parties refuse to compromise or cannot come to an agreement, then they will still have to go to court and the money spent on mediation will have been wasted. Also, if the parties do have to go to court then both sides have ample time to prepare against any information the other side has because most would have been said during the mediation process.
     • Mediation has no formal discovery process. Both parties have to be able to trust each other in disclosing information but are not compeled to tell each this information.
     • Legal precedent cannot be set in mediation. Cases like discrimination that go through mediation only satisfy the parties involved. With mediation, there will be nothing set for future rulings or for incidents like that to happen again.

2. Arbitration is a method of resolving disputes without going to court. They are a third party that looks over both sides presentations and decides the outcome instead of going to trial.

   • Five qualifications that are needed to be an arbitrator
     • An arbitrator must have no bias or prejudice towards any party or matter involved and is capable of applying standard principles to the matter at hand.
     • The arbitrator must be able to preside over both parties as well as make a final decision.
     • Educational degree or professional license in the field of expertise
     • Membership in a professional association
     • Minimum of 10 years of senior level business or professional experience or legal practice
   • Three Advantages of Mediation
     • By going through arbitration both parties can set the results and the information from the process as confidential. This is good if there is information that is embarrassing or not something that one side would want to be available for the public know.
     • The parties to the dispute agree to the arbitrator that will be ruling over their case. There is a list of arbitrators that are allowed through the court and both sides will be able to agree on a person. This way they can ensure that the arbitrator is someone that they can be confident in ruling fairly.
     • Arbitration is usually less expensive. Usually the fee to pay the Arbitrator will be cheaper than that of going through court. The fees are typically split between both parties and fees like filing, experts etc are not as high because the the rules of submitting evidence is not as strict, so documents can be sent in instead of having to experts or witnesse.
   • Three Disadvantages of Mediation
     • Arbitration can be binding which means both sides give up their right to an appeal. So if one side feels like the decision made by the arbitrator is unfair they have no way to ask for an appeal.
     • Because this arbtration, rules of evidence does not have to be followed, so information that may not be allowed as evidence and in court can be sent to the arbitrator. In arbritration, the arbitrator can make their decision based off of that evidence.
     • Evidence that is presented as documents cannot be cross-examined by the other side. So the arbitrator will base his/her information sometimes with one-sided information.