Not every dispute is best settled in court. Businesses and individuals today are increasingly turning to alternative dispute resolution (ADR) procedures, including mediation and arbitration, to resolve their conflicts in a less adversarial fashion. These options offer many benefits, allowing parties an opportunity to resolve matters more efficiently and avoid the time, expense, and uncertainty that often come with protracted litigation in state or federal court.
For parties seeking resolution outside the courtroom, ADR presents a strong option with an impressive 85% success rate based on numerous studies. M&S offers these services through an experienced team that has served as mediators and arbitrators across a wide range of complex and sensitive issues.
Not surprisingly, the answer depends on the individual dispute. At times a court may require ADR. Setting aside those situations, the core requirement of ADR is consent. Each party to an ADR must consent to it, as well as to its terms and rules.
The two principal forms of ADR are mediation and arbitration. What do they have in common? First, they cost less money than litigation. Second, they take less time than litigation. This is partly because arbitration and mediation involve a more limited discovery process. Parties can tailor the procedures of the proceeding to the dispute.
Third, the parties can select an expert, called a “neutral,” to mediate or arbitrate. In litigation, the judge that is assigned to the case may not have as much familiarity with the subject matter of the dispute. This becomes even more important with disputes within technical industries or involving complex areas of law, as can be the case with the intricacies of consumer protection and regulatory compliance.
Whether the parties to a dispute will and should consent will depend on various factors. These include but are not limited to the following:
Our attorneys have deep experience as mediators and arbitrators of complex disputes, especially those related to federal and state consumer protection laws.
Courts in the United States regularly enforce arbitration awards and settlement agreements that came out of mediation. Thus, arbitration and mediation are binding, like litigation, and provide a needed finality to the dispute. All three forms of dispute resolution are decided neutrally, supplying the objectivity that parties want to see.
The purpose of mediation is the exploration of fruitful common ground between the parties by use of a neutral and, if applicable, expert guide. The mediator’s ultimate recommendation is only binding if the parties accept it via a contract (a settlement agreement). But the arbitrator’s award is binding once the parties agree at the outset to participate in arbitration.
Moreover, privacy and confidentiality are important factors to consider. Litigation is public, whereas arbitration and mediation are private proceedings between the parties and the arbitrator or mediator. But while arbitration is not necessarily confidential, mediation is. Valuable trade secrets or sensitive information may be better protected with the privacy of ADR and the confidentiality of mediation.
If you have an arbitration or mediation agreement, it may have a provision specifying criteria for how to select the arbitrator or mediator. If so, you should follow the requirements of the contract. But in general, an arbitrator or mediator should be:
These are minimal requirements. The next most important consideration is experience and expertise with the subject matter of the dispute you are dealing with.
When discussing the choice of arbitrator or mediator with the other party, remember to focus on cooperating with them to make the most objective and fair selection.
Prepare for your mediation session with careful thought and consideration. Focus on your interests, not any positions you have taken so far. Similarly, focus on the other party’s interests and not their positions. This point of view will enhance your ability to pivot to new, more realistic, and mutually beneficial positions during the course of mediation.
Additionally, among other things, take these steps:
An arbitration hearing is less formal than its equivalent in the courtroom, but the stakes are just as high. The arbitrator in your case will decide the issues based on facts and exhibits presented during the hearing. You should take the hearing seriously as an objective, fact-intensive process where arguments are made, rejected, and accepted. It is, therefore, critical to prepare for the hearing as you would for litigation. Know and adhere to the procedures and rules that you and the other party agreed to as governing the arbitration.
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Our ADR team includes certified mediators and seasoned litigators who bring decades of experience navigating complex legal issues and disputes through all forms of conflict resolution. They are exceptionally skilled at facilitating productive communication, helping parties narrow their points of difference to identify common ground, and identifying creative solutions to successfully resolve conflict. They have received national recognition for excellence in law from respected peer organizations including Best Lawyers, Martindale-Hubbell, and Ohio Super Lawyers. The ADR team is led by:
A former Ohio Consumer Protection Chief, Helen offers a broad and balanced perspective earned through more than 30 years of experience working across the aisle enforcing, defending, and mediating consumer protection and other business matters. She has managed hundreds of regulatory investigations and settlements, defended dozens of state and federal court enforcement actions, and settled hundreds of state, federal, and private action consumer protection matters. Helen is a certified mediator through the Institute for Conflict Management.
With two decades of trial experience, Lisa brings a deep understanding of the issues and risks faced by both sides in complex litigation and has built a successful track record helping parties achieve resolution before ending up in a courtroom. Lisa has participated in or served as a mediator in federal district court in more than 100 matters across a wide range of cases including class-wide settlements, complex business-to-business matters, employment and labor relations, contract and collective bargaining disputes, and personal injury cases. She also has significant experience presenting and serving as an arbitrator in employment and labor relations disputes. Lisa has completed formal mediation training through the American Bar Association and is a member of the ABA’s Dispute Resolution Section.
