Alternative Dispute Resolution (ADR) refers to a number of different methods used to settle controversies outside the civil court system. These include mediation, non-binding arbitration, binding arbitration, and summary jury trials.
What Is the difference between Arbitration and Mediation?
One of the basic differences between mediation and arbitration is that in mediation, the parties themselves are the decision makers. The mediator's function is to bring the parties together, to facilitate communication between them, and to help them resolve their dispute. In arbitration, on the other hand, it is the arbitrator (or the panel of arbitrators in more complex cases) who is the decision maker. During the arbitration hearing, the parties are not communicating with each other. Instead, they are presenting their case, through their attorneys, to the arbitrator. After hearing all of the evidence presented, the arbitrator renders his decision.
Most of the time, parties come to mediation focused on the main issues in dispute. However, it is not unusual for the parties to overlook other issues that may be important to a settlement. Barry helps the parties identify and address such issues.
In mediation, the parties retain control over the process since the dispute will not be resolved unless both parties (or all parties, if more than two) agree upon a settlement. Moreover, by reaching an agreement, the parties know the exact terms and extent of the settlement, which they have structured themselves. If, instead, the parties take their dispute to a court trial, the Court's decision (or the ramifications of the Court's decision) might be very different from the result that one or more of the parties ever anticipated. Mediation eliminates or minimizes this risk.
One of the most important aspects of mediation is that it helps to preserve the personal and business relationships that exist between the parties. It is also not unusual for new relationships to be forged during the mediation process. Barry has experienced situations in which the parties came to mediation as bitter opponents, but during the mediation reached an agreement whereby they became business partners on a project in which they both had a deep interest. Although they came to mediation as adversaries, they left as partners and friends.
Bringing About Effective Resolution Without Litigation
When disputes arise in the course of your life or business, and the dispute has not been resolved through direct negotiation between the parties, by mediation, or by one of the parties just giving in, the parties should consider going to binding arbitration. In binding arbitration, the parties agree ahead of time that they will be bound by the decision of the arbitrator.
Arbitration is a less expensive process and can be scheduled and conducted much faster than a court trial. Furthermore, in binding arbitration, the arbitrator's decision is usually final since the grounds for appealing an arbitrator's decision are very limited. The arbitration will be conducted by a single arbitrator or by a panel of three arbitrators, depending upon the size and complexity of the controversy.
· An arbitrator, who is a neutral third party (or a panel of three neutral third parties) familiar with the applicable area of law hears the dispute in a less formal setting than a courtroom.
· The attorneys for the opposing parties present their evidence and their cases to the arbitrator who then rules as to the proper resolution of the dispute.
· In the case of non-binding arbitration, the parties are free to reject the arbitrator’s decision and take the dispute to a court trial.
However, in non-binding arbitration, the parties are hoping that the arbitrator's decision, although non-binding, will be sufficiently persuasive to enable them to settle the controversy themselves.
A summary jury trial is another alternative dispute resolution process. It is a mock trial conducted by a summary jury judge before an actual jury. The attorneys present a summary of the evidence through a modified trial procedure so that the case can usually be tried in one day. This is an opportunity for disputing parties to "try" their case before a jury that then deliberates and renders a verdict which is advisory, and thus non-binding. The unique and very important aspect of this process is that after the jury renders its verdict, the parties and their attorneys are permitted to question the jurors. The questions usually focus on the jurors' impressions of the strengths and weaknesses of each party's case, the pros and cons of each attorney's presentation of his case, and the reason the jury decided the way that it did. This critical information is then used by the parties to help them settle the case themselves, sometimes with the assistance of a mediator. If a settlement cannot be reached, then the case can proceed to an actual court trial.
Summary jury trials are very useful when each party is convinced that the jury will side with that party in an actual court trial. This is a much faster and less expensive way to determine the validity of such an assumption. This process is also very cost and time effective in cases that will take many days or weeks to try in an actual court trial. It should be noted that the parties can agree that the verdict of the jury in a Summary Jury Trial will be binding. If the parties so decide, the controversy is then resolved.
Barry provides assistance to counsel and unrepresented parties in evaluating their cases for purposes of settlement. Barry offers these case evaluation services as a way to help provide an objective view of the strengths and weaknesses of a case. Based on his experience mediating over 250 cases, he advises on how best to position one's case with the goal of obtaining an optimal settlement.
Barry is available to negotiate business agreements as well as the resolution of disputes. He can negotiate directly with the opposing side or provide behind the scenes guidance to the client and counsel. As with all other services provided, Barry offers up to one hour of free consultation. Please call or email for additional information.