Q: When would it be advisable for an attorney to consider ADR as opposed to litigation?
A: Each case is different. The goals of the client and the motivation and ability of the client to deal with compromise are important assessments which any lawyer must make before engaging in mediation. Timing is a major factor in making the decision to choose ADR instead of litigation. Generally, the attorneys after conferring with their client may consider this alternative as they strategize about process at the commencement of litigation to provide sufficient time to mediate/arbitrate before trial. Depending on the strategy and process employed, the scope of discovery prior to mediation can be limited as an additional cost savings. The goal of resolving a client’s claims should always include a discussion of what process most serves the needs of the client, and that discussion should occur at the commencement of the representation.
Q: What are the advantages of selecting ADR over litigation?
A: First, ADR is private and confidential. Second, it provides the parties with remedies which may not be possible in court. The parties can take their specific claims and problem-solve in a way that makes the most sense to them, where they define the outcome. Third, the parties have control over the scheduling of mediation or arbitration, rather than having a schedule imposed by the court. Lastly, it is a major cost-saver. Many expenses that are associated with litigation are absent in ADR. Moreover, statements made during the mediation are not on the record, the proceedings are informal and more relaxed, creating more comfort for the parties involved, and the scrutiny, publicity and jeopardy of a public trial is avoided.
Q: What is the difference between mediation and arbitration?
A: In arbitration, the arbitrator acts as neutral third party, and is the ultimate decision-maker. The arbitrator directs the decision based on information supplied by the parties, and the decision rendered is binding. Arbitration brings finality and closure to the case.
Mediation, on the other hand, is more collaborative. The mediator remains a neutral party, acting to facilitate settlement. Mediation allows for the parties to retain control over the outcome, while the mediator provides support and guidance through the process.
Generally speaking, the arbitration and mediation process is private and confidential.
Q: When it is advisable to choose arbitration over mediation or vice versa?
A: When both parties desire privacy and finality, want to avoid trial and costs associated with it, but are unable to collaboratively agree on a settlement, it is better to consider arbitration. Alternatively, if the parties are agreeable and desire a neutral third party to assist and guide them through the process of negotiating a settlement, mediation is the better alternative.
Q: How should an attorney go about finding a mediator or arbitrator?
A: The best advice is to work from referrals given by other attorneys or judges. This will ensure that the attorney will know beforehand that the arbitrator or mediator is qualified and suited to the particular matter. Moreover, it will bring about a level of comfort knowing that the arbitrator/mediator has worked with others who are happy with the results. If the attorney is unable to obtain referrals, then it is best to do the relevant research either via the Law Tribune or the Internet.
Q: What goes on during the typical mediation?
A: The process can vary according to the style of the mediator and what the parties want to achieve as disclosed in their confidential mediation statements. Customarily, both sides submit position statements prior to the hearing. These papers are only seen by the mediator unless otherwise agreed. Both parties come to the mediation for a general session. Sometimes the lawyers make an opening statement. The mediator will listen to the positions of each party, generally allowing the party to explain his or her perspective of the problem. The mediator will endeavor to build trust with each side of the mediation, by giving equal time to the parties to explain their claims.
A mediator can continue to be in contact with the parties to confirm a settlement. If a global settlement is reached in mediation, and then an agreement is prepared, and a “detail” appears to be derailing the settlement, the mediator can connect with the parties by phone or schedule an expedited meeting to work out those “details.” The flexibility of the mediator is a key component to maintaining productive contact between the parties. Many experienced mediators are persistent in their monitoring of the settlement to ensure that it holds.
Q: What are certain attributes to look for in a mediator or an arbitrator when choosing?
A: It is important to look at all that the arbitrator/mediator has to offer. Disposition and temperament are factors that should be considered. It is crucial for the attorneys and clients to be comfortable. The mediator/arbitrator should be a good listener, empathetic, an effective communicator, trustworthy and earnest. It may also help the parties to relax and work together successfully if the arbitrator/mediator possesses a good sense of humor. Additionally, the mediator/arbitrator’s experience and reputation are important factors when deciding who is best suited for each individual case.
Q: What is your experience after a successful mediation?
A: Parties are relieved that the conflict is over, even if they did not achieve every one of their goals. They express satisfaction with retaining control over decision-making. Parties realize that they can go back to their more productive lives and work, leaving the past conflict behind. They understand that their lives will not be filled with more case and trial preparation surrounding a past event. When a settlement is not achieved, parties understand the specific claims which divide them, the strengths and weaknesses of their respective case, and often the mediation session will set them up for a negotiated settlement prior to trial. We all understand that some cases must be tried in court, but effective representation must include a significant and meaningful process for settlement.•