Alternate Dispute Resolution

Alternate Dispute Resolution

1. Mediation

   • Advantages
     • Relatively inexpensive - mediation does not require the presence of a lawyer, however, an outside mediator is hired and the process can be conducted on a schedule suitable to the parites. This is still significantly less costly than litigation if the mediation is successful.
     • Allows for flexible solutions and settlements - "the parties can agree to a settlement requiring, or restraining, action by one party which was not originally envisioned as something beneficial to the other party (Lawshelf Educational Media, n.d., pg. 3)
     • Settlements reached are more agreeable to the parties - since the agreement was arrived at through a negotiation between the parties voluntarily, the liklihood is higher that the parties will adhere to the agreement.
   • Disadvantages
     • Agreement may not be reached by the parties - the parties may spend time and human resources on reaching a resolutions that may not be resolved if the parties cannot reach an agreeable outcome. Once the parties have exercised the mediation and it does not end in a agreement, the facts exposed during the mediation may not have the impact in litigation as the other party has time to address them, leaving the argument with less weight.
     • Party disparity - if one of the parties is more passive, the other party may take advantage of the passiveness. In cases such as harassment, this may be significantly more harmful to the overall situation and compound the existin problem rather than reach resolution.
     • Discovery process - If a part of the case is based on information being held by the "other" party, there is no process in place to "compel disclosure of such information" (Lawshelf Education Media, n.d., pg. 5). The reliance of evidence is based on good faith, which, if the issues has reached mediation, may be part of the existing issue.
   • Qualifications for Court-appointed mediators
     • Training - "states with official court mediator rosters usually require between 20-40 hours of approved mediation training" (Legal Studies Master's Degrees, 2017, pg. 3)
     • Education - dependent on state but typically a bachelors in behavioral or social science, and in a few states, a law degree, however, waivers may allow experienced mediators to bypass educational requirements. Some
     • Ethics - must be of good moral character and in some states such as the District of Columbia equires adherence to Ethical Standards of Mediation Practice (North Virginia Mediation Service, 2013)
     • At a minimum, reached the age of majority
     • Continued Training - Most state require (such as Idaho) a minimum number of hours of continued training - Idaho requires individuals meeting all other qualifications to "complete at least 5 hours of continuing training every 3 years" (Nothern Virginia Mediation Service, 2013, p.24).

2. Arbitration

   • Advantages
     • Exclusionary rules of evidence do not apply - "everything can come into evidence so long as relevant and non-cumulative (Mazirow, 2008, p. 1)
     • Not a public hearing - there is no public record of the proceedings which may be enticing for victims and businesses alike.
     • Arbitrator expertise - the ability to find an arbirator that has expertise in the specific subject matter of the dispute can bring signifcant advantages to the reaching resolution.
   • Disadvantages
     • No right to appeal - even if the "arbitrator makes a mistake of fact or law. However, there are some limitations on that rule, the exact limitations are difficult to define, except in general terms, are fact driven" (Lawteacher, 2013, pg. 32)
     • No right of discovery unless the parties agree to provide for and allow discovery or if the arbitrator permits discover. This may be very problematic when a party may withhold evidence that would be damaging to their side of the case.
     • No Jury - for th evictim, this may pose a problem if the arbitrator makes a decision based on justice and equity rather than making a decision based on the rules of law or evidence (Lawteacher, 2013).
   • Qualifications
     • Experience - according to American Arbitration Association, their current roster qualification s include a "minimum of 10 years of senior level business or professional experience or legal practice" (Laws, n.d., pg. 2)
     • Educational degree or professional license in the field of expertise
     • Membership in a professional association
     • Training - or expetise in arbitration and dispute resolution
     • Neutrality - must have no bas of predjudice "towards any party or atter involved and is capable of applying standard principles to the matter at hand" (Laws, n.d., pg. 2)