DecisionOne Mediation & Arbitration What is mediation? Mediation is a process in which a neutral and independent third person assists parties involved in a conflict to reach a voluntary and mutually acceptable settlement of their differences. During a mediation, the parties discuss the disputed issues with the mediator who uses active listening techniques, and attempts to help the parties reconcile their differences, while negotiating an agreement that characterizes their future actions or responsibilities. What is a mediator? A mediator is a facilitator who directs the discussion of the issues. The mediator is not a judge and does not determine who is right or wrong. Using communication and listening techniques, as well as applying special training skills, the mediator guides the parties to an understanding of the issues involved in the dispute and helps them find agreeable solutions to the problem. A mediator can be one individual, or there may be two mediators; known as co-mediators, or there may be a panel of mediators to help resolve large scale problems. Do I need an attorney to use mediation? In most mediations, you won't need an attorney with you. This is because the parties are trying to work together to solve their problem - not trying to convince a judge or arbitrator of their point of view. If your case involves substantial property or legal rights, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. You may also want to make a lawyer's approval a condition of any agreement you reach. If the mediator happens to be an attorney, he/she cannot act as an attorney during a mediation, and cannot represent either party if a case is not settled and goes to court. In divorce cases, it is recommended that each party be represented by their own attorney, in order to act as an advisor, review your own negotiated settlement, and finalize and file documents with the court. What kinds of disputes can be mediated? Any dispute can be mediated if both parties are open to the idea of settling the conflict. Mediation is particularly effective when the parties have a relationship that will continue after the dispute is resolved. What happens during mediation? At the initial session, the parties discuss their reasons for seeking mediation, and the mediator provides a detailed outline of the mediation process. The mediator will also set forth the guidelines for the mediation process. The parties and the mediator will identify the information that needs to be exchanged and discuss and agree upon any needed ground rules. The parties and the mediator will identify each of the issues to be resolved. The mediator will attempt to understand each problem, each party's point of view, as well as his and her needs, priorities, and interest. Additionally, the mediator will often help the parties understand each other. The various needs, priorities and interests of the disputant's will then be discussed, while developing options that best serve their present and future needs. The last step entails the parties considering possible solutions to their disputes that work for each of them without giving up something that is too important. These decisions are then drawn up into an agreement or memorandum of understanding (MOU), by the mediator. The disputants then have their own attorney review the agreement and if it is satisfactory to all parties it is signed and filed with the court. What about paperwork? When a mediation is completed and a resolution has been reached a mediator will write a Memorandum of Understanding (MOU), which outlines your agreement. This memorandum can be taken to an attorney who will convert it to a legal document and file it with the court. What are the benefits of mediation? You are actively involved in the decision-making process, and you control how fast or slow this process moves. You can speak at various times in order to fully disclose your thoughts and feelings. You do not have to answer only questions that are asked of you such as in the adversarial litigation process. Mediation helps you control decisions that affect your life. Mediation reduces stress, which is created from conflict. This reduction of stress not only benefits you, but more importantly it benefits your children. Let's face it, your children are always watching you and you're their biggest role model. The way you handle conflict is modeled by your children. If you handle conflict in a respectful and productive manner, so will your children. During a divorce children are susceptible to the stresses a divorce produces. If you handle your divorce in a respectful and dignified fashion, it will create less tension for your children. Remember, your children are very vulnerable during this time and they are watching you more than ever! Mediation is non-adversarial and it promotes communication and cooperation; whereas in court you try to make each other look like an awful person and have limited opportunities to speak your peace! Parties who have reached their own agreement in mediation are also generally more likely to follow through and comply with its terms than those whose resolution has been imposed by a third party decision-maker. Mediated settlements tend to hold up over time, and if a later dispute results, the parties are more likely to utilize a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach. In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, the mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with business or their lives, mediation may be a desirable means of producing rapid results. Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties' interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable. Mediation is affordable and costs much less than using litigation. Mediations are performed in an informal and relaxed setting. Suspicion of what the other party is doing is eliminated. Win/Win situation instead of the adversarial Win/Lose process.

ABOUT  ARBITRATION Arbitration is an alternative to resolving disputes in court.  The arbitration process allows the parties to select an individual or several individuals with a specialized expertise in the subject matter of the dispute to listen to the evidence and render a binding decision.  In residential construction arbitration, there is usually one arbitrator.  In more complex cases, the parties may request more than one arbitrator, and a panel of arbitrators is appointed.  Usually, an arbitration panel consists of three members, called a tripartite panel, one of which is designated as the chairperson of the panel or chief arbitrator.  In civil litigation a judge is randomly assigned to hear a particular case and may not have the necessary substantive or technical expertise to appreciate fully the intricacies of legal counsel’s arguments or have a comprehensive knowledge of the construction matters in dispute.  Also, the large volume of court caseloads sometimes results in substantial delays in processing individual cases.  Many judges are mandating mediation and/or arbitration prior to the beginning of actual court proceedings with the expectation that the case will be settled and the court litigation process will be avoided. The most basic difference between arbitration and mediation is that arbitration involves a decision by the intervening third party (neutral) after an evidentiary hearing where the arbitrator is typically a passive participant whose role is to determine right or wrong and the mediator by contrast, is generally an active participant who attempts to move the parties to reconciliation and agreement, regardless of who is right or wrong.  At the end of a mediation, the parties write up their own settlement agreement with the assistance of the mediator and at the end of a binding arbitration, the arbitrator, usually within 30 days, makes an award to the prevailing party.  Both the mediation settlement agreement and the arbitration award are legal documents and are enforceable in a court of law. In binding arbitration, the parties agree to abide by the decision of the arbitrator.  In non-binding arbitration, the parties do not agree to be bound by the arbitrator’s decision and they use the arbitration process in order to obtain an advisory opinion.  In non-binding arbitration, the parties may nevertheless abide by an arbitrator’s decision in order to end the dispute without resorting to what would probably be a lengthy and costly litigation.  If a party to the arbitration agreement files a lawsuit, the other party who wants to have the dispute arbitrated may request the court to suspend the lawsuit and compel the other party to arbitrate.  The courts favor arbitration, and the courts will usually enforce the parties’ agreement to arbitrate.  The court usually “stays” or “suspends” the proceedings in court pending the outcome of the arbitration, and may impose a time period during which the arbitration must be concluded. In civil litigation, the court adjudication process and the procedures are highly structured and institutionalized, typified by detailed rules and numerous compliance mechanisms.  Rules of evidence enhance the reliability of proof of claims and defenses.  In disputes not requiring these types of stringent procedures, mediation and arbitration offer certain measurable advantages.  Arbitration, while having some of the evidential and procedural regularity of court adjudication, is conducted in a less formal and less rigorous setting, thereby enhancing the potential for a more expeditious resolution. Arbitration proceedings generally begin with a pre-hearing or preliminary conference with the arbitrator that is attended by both parties along with their legal council to review the items in dispute and the ground rules and procedures that will be followed during the arbitration process.  After that conference, all communication with the arbitrator must be made jointly by both parties and private conversations between the parties and the arbitrator are generally not allowed and are commonly called “ex parte” conversations which may be a cause of action to vacate the arbitrator’s award. The attorneys usually make opening statements and closing arguments where they frame the facts in argumentative terms in order to present the facts in a light most favorable to their clients.  These arguments, during the hearing, may be supported by actual testimony or by the documents submitted as hearing exhibits.  If necessary, subpoenas can be issued by the attorneys or by the arbitrator to insure that pertinent and relevant information is brought to light during the hearing process.  At the end of the arbitration process, which is quite involved, the arbitrator will make an award to the prevailing party.  The arbitrator may announce his/her decision at the end of the arbitration session or he/she may take up to 30 days to issue the award.  The arbitrator is not obligated to explain the award and may decide to only issue the award without explanation.  That award is generally not subject to appeal unless the arbitrator failed to follow certain rules or procedures that are required by law.  The main reason that arbitration awards are vacated is the arbitrator not disclosing a relationship that he/she had with one of the involved parties, their councilor, their councilor’s firm, one of the witnesses, etc.  It is not uncommon for an arbitrator to withdraw from a case if during the arbitration process he/she is made aware of a fact that would make him/her not to be a neutral arbitrator.  Many states have adopted some form of the “Uniform Arbitration Act” and are also bound by the rules and procedures of the “Federal Arbitration Act” which must be followed by the arbitrator. Although arbitration is a very effective means of dispute resolution, I personally recommend using Med/Arb which is discussed elsewhere on this website.  It has the finality of an arbitration but affords the parties the opportunity to be more involved in the process, generally costs less than arbitration and can be conducted in a more timely manner.