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Fear Not: Utilizing Mediation as an Alternative to Litigation

mediationFear of the unknown is a powerful and paralyzing force. To many people, the legal system is an enigma that contains countless unknowns. Understandably, there can be a lot of fear and anxiety involved when one is thrust into a position that requires them to navigate the complex legal system. This fear can be compounded when terms like “Alternative Dispute Resolution,” “Arbitration,” and “Mediation” are thrown into the mix. Nevertheless, these concepts all serve a purpose and, when properly utilized, provide useful tools to quickly and effectively resolve legal disputes.

Familiarize Yourself with the Terminology

Just about any legal dispute will present a party with many different options and choices. Parties should always perform their due diligence in evaluating every potential option and outcome at every juncture of the legal process. Keep in mind that the best method to evaluate your legal options is to engage the services of an experienced and reputable attorney, who will work to keep you informed and assist you in choosing the most advantageous option.

So, what do terms like “Alternative Dispute Resolution,” “Arbitration,” and “Mediation” even mean?

Alternative Dispute Resolution:

When you hear “Alternative Dispute Resolution” think of it as an umbrella. Alternative dispute resolution is a general term that encompasses any method to resolve a legal dispute instead of litigating the matter at a trial. “Mediation” and “Arbitration” are two methods of resolving a legal dispute without a trial, and thus fall under the umbrella of alternative dispute resolution(s).

Arbitration:

“Arbitration” may be a term that you have heard in recent years, which, depending of what you have heard, may make you a little uneasy. Generally, arbitration is best described as a “private trial.” Parties can voluntarily agree, typically by contract, to submit the whole or portions of a legal dispute to a neutral third person, who will then render a decision that is binding on the parties. Arbitration is designed to resolve disputes outside of the courts and public eye.

On paper arbitration may be a very enticing alternative to litigating a dispute in a state or federal court, as the parameters of the arbitration process and the third-party “arbitrator,” who will act as the “judge,” are contractually determined by the parties. While arbitration can be a useful alternative to trial, its negative aspects have been highlighted in recent years by large companies who, through a variety of methods, mandate arbitration if a legal dispute arises. Complaints against “forced arbitration” include doubts about the arbitrator’s “neutrality,” who are typically selected by the company and therefore have a reason to favor the company, and unreasonable limitations on an aggrieved party’s ability to litigate.  Overall, binding arbitration may leave a party feeling as though they were deprived of their “day in court.”

Mediation:

“Mediation” is often confused with arbitration, and therefore the same uneasiness that can come with arbitration may be associated with mediation. When it comes to mediation, there is little to nothing to fear, especially when done with the assistance and under the guidance of an experienced attorney.

Mediation is basically a structured negotiation process, with the ultimate objective of avoiding a trial by reaching a compromise that settles the dispute. The services of a trained and neutral third-party “mediator” are employed at a mediation, to facilitate and guide the negotiation process. Unlike arbitrators, mediators have no power to bind the parties. In fact, the general rule is that mediation process is not binding. To become binding, mediations require the written consent of both parties.

What to Expect When Mediating.

The Length of Time:

Often times, mediation can be completed within one day. However, a mediation’s length of time will vary greatly depending on a variety of factors including, but not limited to: the amount of legal conflicts sought to be resolved, the complexity of the legal dispute(s), the number of parties, the attitude of the parties, the willingness of the parties to give concessions, the competency of the mediator and attorneys, etc.

It is worth repeating that before making any major decisions in the process of resolving a legal dispute, including whether or not to even engage in the mediation process, you should consult with an attorney who is familiar with the area of law relevant to your dispute.

The Format:

Unlike a trial, where most, if not all, communications will come directly through your attorney, you will likely be expected to actively participate in the mediation. At times, you will be directly communicating with the mediator, the opposing party, or both. It is very possible you may even be asked to give an opening statement at the beginning of the mediation, even if you are represented by an attorney.

A typical mediation has two major components: (1) joint sessions and (2) caucuses. Traditionally, mediations will begin with a joint session and then break into caucuses. The process can, and likely will, involve multiple joint sessions and caucuses, where many offers and counter-offers will be made. For this reason, it is important to be patient in order to allow the mediation process to work.

At a joint session, the parties and the mediator meet, presentations are made, and everyone engages in discussions.  The purpose of the joint session is to identify and/or narrow the issues of conflict and ultimately reach a compromise that settles the dispute.

Caucuses are confidential sessions between the mediator and an individual party, without the presence of any adverse party, where the mediator will work through the strengths and weaknesses of that party’s position and attempt to distill the individual party’s actual wants and needs. The information provided to the mediator at a caucus is confidential, thus allowing the parties to speak freely with the mediator. Caucuses provide the mediator with a clearer picture of the conflict, which is then used by the mediator to steer the mediation towards a mutually agreeable resolution.

Why Bother with Mediation?

Resolving a legal conflict can be an expensive, lengthy, time-consuming, and emotionally taxing process. Litigating a case at trial never guarantees a favorable result, even under the best circumstances and with the best legal representation. Arbitration can be unpredictable, at best, and potentially bias, at worst.

Mediation offers a low risk way to potentially reach a good resolution to a case. The resolution is guaranteed because it requires the parties’ mutual consent before it is binding. Typically, any information revealed during mediation is confidential and cannot be used at trial, in the unlikely event the mediation is not successful. Even if settlement is not reached at the mediation, the parties will have a better understanding of the strengths and weaknesses of their case and will be in a better position to potentially settle the dispute at a later date.

Contact an Experienced Personal Injury Attorney Today

If you have been involved in an incident and you are considering litigation, mediation or arbitration, you should contact an experienced personal injury lawyer first. The attorneys at Herman, Herman & Katz, LLC can advise you of your legal rights and work closely with you to develop a strategy for your claim. Our clients benefit from our years of combined experience, and so can you. Schedule a consultation now at 844-285-0267 or fill out our online contact form with your questions.

 



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