Alternative Dispute Resolution – Mediation and Arbitration

Mediation is in the news a lot lately, especially for divorce, as a more peaceful way to end a relationship. Mediation, however, is not just about ending relationships but part of a growing area of what is known as ADR – alternative dispute resolution. There are several types of ADR, Arbitration, Mediation and Collaboration. Generally ADR is faster and can keep costs down. I’m covering the two types of ADR with which I am most familiar, mediation and arbitration.

Mediation

Mediation is one type of alternative dispute resolution. It can be a part of resolving conflicts that do not necessarily need to end the relationship between or among the parties. Some examples are small businesses (especially family businesses), disputes between contractors and homeowners and landlord/tenant or noise disputes. Often, there is a conflict, but for the sake of the business or contractual relationship it would be better to resolve the conflict out of court and in a way that the business still functions or the contracting job still gets done. As the conflict is kept out of court there is also a confidentiality factor as it is not a public record. Unlike divorce mediation, sometimes there are more than two parties involved in the conflict. There may even be more than two sides with several different positions. The job of the mediator is to help the participants facilitate solutions to their conflict that they will feel comfortable with. This usually leads to a greater and longer lasting compliance with any agreement reached.

Arbitration

Arbitration is another type of ADR where parties argue a case in front of an arbitrator (or a panel of arbitrators) and the arbitrator or panel decides the matter. The parties are entitled to be represented by attorneys. The main difference between arbitration and litigation is that the process is usually shorter and the rules are different from those in the courtroom. There are still rules and you want an attorney representing you that understands that arbitration is not a free for all. I once represented a client in an arbitration where the opposing parties attorney did not know the arbitration rules and much of their evidence was not allowed in because they just brought it to the arbitration rather than following the disclosure rules. Many times contracts have what is known as an “arbitration clause” meaning you are giving up your right to sue in court and have to participate in arbitration. When you have a complicated contract it is advisable to read it and possibly have your attorney review it prior to signing. Aside from representing parties in arbitrations I have been on the other side as an arbitrator. I myself am on the Nassau County Matrimonial Fee Arbitration panel where we resolve fee disputes between attorneys and their clients.

Alternative Dispute Resolution in the Courts

Even within litigation more and more often, the courts are using ADR as a means to try to settle cases to save time and keep the court from becoming overwhelmed. For instance in the small claims court in my area, all parties must go to a court ordered mediator located right in the building to try to resolve their case prior to being seen by the judge. In the Travis county Supreme Court Matrimonial Center sometimes the parties are ordered to go to the court mediator to try to resolve custody issues. The parties may or may not have their attorneys present, it is up to them. Once custody issues are resolved many other issues in the case are easier for the court to deal with.

ADR is an increasingly popular way for people to resolve their conflicts. Let us tell you whether we can help you resolve your conflicts by calling for a consultation today!

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