Alternative Dispute Resolution

Alternative Dispute Resolution

1. Mediation

   • Advantages
     • One advantage of mediation over litigation is that it is more cost efficient, in both time and money. Since mediation is only between the two parties and the mediator, there are no lawyer fees. The length of mediation depends upon the time taken for the parties to reach a settlement, usually a couple of days, which is shorter than a trial.The parties split the cost of the mediator, which is cheaper than retaining and attorney for a months-long trial, and the amount of time taken off of work is less for each party since mediation can be
     • Mediation is non-binding, which means that neither party is forced to agree to the terms of an agreement. The mediator is a neutral third party that guides the process, but does not force either party to accept a settlement. All decisions are voluntary.
     • Mediation is confidential, so unlike litigation where there is a trial that is open to the public, mediation is completely private. Anything that is said in mediation is private, including the settlement agreement, and may not be disclosed by either party to any outside persons.
   • Disadvantages
     • The process of mediation can be unfavorable for someone who has doesn't like confrontation. If a non-confrontational person ends up in mediation with someone who is over-powering, they may agree to something due to feeling forced.The end result could be losing something that is rightfully his or hers. While mediators are skilled in neutralizing hostile situations, they have limits as to what they can and/or say,
     • Since mediation is an informal meeting with two parties and a neutral third party, the parties do not have lawyers to produce evidence or interview witnesses. The mediators have knowledge of the laws, but are unable to provide legal advice to either party.
     • Mediation doesn't always work. Sometimes the parties don't reach an agreement and the end result is litigation. Not only is litigation more time consuming and more expensive, but each party has already wasted time and money on mediation.
   • Mediation is a procedure in which two parties work together with a neutral third party (mediator) who helps them reach an agreement.
   • Qualifications
     • North Virginia Mediation Service(n.d.). Retrieved from https://nvms.us/wp-content/uploads/2014/11/us-mediation-certification-standards.pdf
     • A master's degree in psychology, social work, marriage, family and child counseling, or other behavioral science substantially related to marriage and family interpersonal relationships.
     • At least two years of experience in counseling or psychotherapy, or both, preferably in a setting related to the areas of responsibility of the family conciliation court and with the ethnic population to be served.
     • Knowledge of the court system of California and the procedures used in family law cases.
     • Annually complete 8 hours of related continuing education programs, conferences, and workshops. This requirement is in addition to an annual 4-hour domestic violence update training.
     • Training in domestic violence issues as described in Section 1816.

2. Arbitration

   • Advantages
     • While arbitration tends to be more expensive than mediation, it is still more cost efficient than litigation. The average time for arbitration is about a year, while litigation can take several years.
     • Proceedings are private. This is important when it comes to businesses because it means no one can disclose the settlement or any of the evidence submitted.
     • The procedures for submitting evidence and witnesses is simplified from that of litigation. In litigation there is a chain of custody for evidence and a witness list for witnesses, but in arbitration, it is much more casual.
   • Disadvantages
     • Since final decisions are in the hands of the arbitrators, neither party has a say in the final decision. This aspect is much like arbitration; however, since the proceedings in arbitration are private, neither party may use the evidence or any other contents from the arbitration in subsequent court proceedings to try to seek a different outcome.
     • There is a high risk for a biased or unfair decision since arbitration is private and the decisions are not reviewed by the court. There is a high possibility that an arbitrator is less objective and therefore favors one party over the other.
     • Arbitration is increasing in popularity and therefore the case load for arbitrators is increasing. In order to offset the increase, they are charging more. While the overall cost is still lower than litigation, the cons may soon outweigh the pros for arbitration as opposed to litigation.
   • Qualifications (American Arbitration Association, n.d.)
     • American Arbitration Association(n.d.). Retrieved from https://www.adr.org/sites/default/files/document_repository/Qualification_Criteria_for_Admittance_to_the_AAA_National_Roster_of_Arbitrators.pdf
     • Minimum of 10 years of senior-level business or professional experience or legal practice.
     • Educational degree(s) and/or professional license(s) appropriate to your field of expertise.
     • Honors, awards and citations indicating leadership in your field.
     • Training or experience in arbitration and/or other forms of dispute resolution.
     • Membership in a professional association(s).