Mediation & Arbitration

Is Litigation or Alternative Dispute Resolution Best for Your Dispute?

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:

• Who are the parties, and what do they want?
• What relationship do the parties have with each other?
• What is in dispute? If it is money, how much is in dispute?
• Where did the dispute arise?
• What resources can each party muster?
• How complex is the dispute?

Our attorneys have deep experience as mediators and arbitrators of complex disputes, especially those related to federal and state consumer protection laws.

Talk with us about how we can help in this area.

Should You Choose Arbitration or Mediation?

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.

How to choose between arbitration and mediation?

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.

Speak with us to learn more about your ADR options.

How Do You Select the Right Arbitrator or Mediator?

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:

• Ethical and impartial
• Diligent and hard-working
• Experienced with ADR

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.

How Should You Prepare for a Mediation Session?

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:

• Remember that legal issues require careful definition. Outline the legal issues associated with the dispute and be prepared to address them during the mediation.
• Assess the factual strengths and weaknesses that you have. Do the same for the other side. Be as objective as you can.
• Identify alternative solutions and outcomes that could satisfy you.

Taking Your Dispute Out of the Courtroom: Is Mediation Right for You?

How Should You Prepare for an Arbitration Hearing?

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.

Let’s discuss arbitration further.