Negotiation, Mediation, Arbitration, Settlement Conference, Early Evaluation, Collaborative law, Med-Arb, etc.

For those of you versed in the world of dispute resolution, conflict management, and the ever expanding universe of ‘ADR’, the lexicon of conflict management and resolution is well known to you. For the uninitiated we provide the following. Please remember that approximately 15-20 years ago not many people were familiar with the term mediation. Today, the only limits on conflict management and resolution are the willingness and imaginations of the participants.

ARBITRATION : Think of a trial. Many disputes end up in arbitration because a contract between the parties mandates that they have to resolve their dispute in this fashion. Some people choose to resolve their dispute via arbitration. An arbitration is very similar to a trial before a judge (sometimes there is more than one arbitrator). While the process may be a little less formal than court, generally there is the presentation of evidence via testimony and documents, and the examination and cross examination of witnesses.

The exact format and process of the arbitration hearing is often determined by the arbitrator with input from the participants.

Pros: Arbitration takes you largely out of the court system. There is more flexibility arranging the proceedings as you are not subject to the dictates and whims of a judge and his crowded court calendar. You generally can arrange the arbitration to more easily fit into the parties and their witness’s schedules. Often the costs are less to arbitrate a case than to go to trial. Arbitration generally brings finality in all but the rarest cases. Evidence rules are generally less formal in arbitrations. You often have the ability to choose with the other party or parties an arbitrator that all agree will hopefully be fair and neutral.

Cons: Generally an arbitration award is final and cannot be reviewed or appealed, even if there is a misapplication of the law by the arbitrator. You are subject to the biases and prejudices of the arbitrator with little control or capacity to remedy any wrong. A lengthy arbitration can end up costing more than a trial. Like a trial, the parties have no capacity to fashion or mold a resolution that may be acceptable to all the participants. You risk a more ‘win or lose outcome’/’all or nothing outcome’.

MEDIATION: Think of a coming together of the parties seeking the assistance of the mediator to bring the participants to a resolution of their concern, problem or conflict.

In mediation the parties can have a tremendous amount of input into how their claims, disputes, and problems are resolved. The mediator has absolutely no power to do anything. If the parties want to get up and leave mediation, they can (its generally voluntary). The mediator does not generally ‘tell the parties’ what to do, or ‘evaluate their claim’ unless requested to do so by one or both of the parties. A mediator pledges to be a neutral facilitator of the dispute. He or she does not hear and rule on the evidence like a court or arbitrator.

In mediation, it is often the case that the ‘heart of the dispute’ can be uncovered by discussions and exploration of issues with the parties whereas this rarely comes out in a more adversarial trial or arbitration setting. The informality of a mediation can often engender a more open and receptive atmosphere for resolution of disputes compared with the more formal and adversarial nature of an arbitration or trial. All communications, with rare exceptions, expressed in mediation, are confidential.

The process or format of mediation differs with each case, the parties, and the mediator. The approach that is used is something that a skilled mediator will give careful thought to after discussing it with the parties, listening to the parties, and observing the parties. In some cases the parties will be kept in separate rooms and the mediator will meet individually with the different sides (often called ‘caucusing’). Sometimes the mediator will feel it makes sense to bring the parties together for some joint discussion, exchange or review period. A good mediator will ‘take the temperature of the parties’ before having them meet together. A mediator generally spends time with the parties before the mediation to ensure that they understand the process, are comfortable with the process and ready to proceed.

Pros: As discussed above, mediations are confidential, voluntary, and allow the parties control over their destiny. Mediations are limited in their approach and scope only by the willingness and imagination of the participants.

Cons: Mediations do not bring ‘forced closure’ to a case. In other words, in cases where the parties cannot work out a resolution of a dispute with the assistance of a mediator, they may still have to go through more of an adversarial procedure such as a binding arbitration or trial. Some may view this as a negative. However, there are times when a case is not necessarily resolved at a meditation but the work done at the mediation leads to resolution of the claim by the parties working on their own, or sets the stage for resolution at a second mediation.

VARIATIONS ON THE THEME: There are innumerable variations on the theme to resolving or managing conflict. Sometimes the parties will agree to mediate a case and during the process realize that they are at an impasse but are willing to have the mediator ‘evaluate and make a ruling’ on the case before him and be bound by that ruling. Sometimes the parties agree in advance that they will mediate a case and any issues that they cannot agree to resolve will be submitted to binding arbitration before the mediator or someone else. (Med/Arb). Sometimes parties will agree to attempt some form of ADR process (negotiations, mediations etc.) at the same time that litigation is in progress.

Any combination of conflict management and resolution often leads to a more effective, efficient and voluntary end to a dispute as compared to a trial of the case. Here are some

variations on the theme.

• Facilitative Mediation: In this type of mediation the mediator is using his or her skills to open communications between the

  parties and guide them towards a resolution free from

  any evaluation of either party’s position by the mediator.

• Evaluative Mediation: The parties work toward resolution with an expectation and openness to the mediator’s evaluation of their respective positions and goals.

• Collaborative Law/Mediation : This is a process where the parties and their lawyers commit in writing to mediate a case with the understanding that if the case is not resolved that the parties must find new counsel if they are to litigate the case. This process arguably insures that everyone involved in the process is committed to a win-win resolution.

• High-Low Arbitration : This is a binding arbitration where the parties agree before the arbitration that regardless of the arbitrators award their will be both a bottom and a ceiling on any award The process works best when the arbitrator has no knowledge of the positions of the parties. As an example, if the Arbitrator makes an award to party 1 to pay party 2 more than the agreed upon limit, party 1’s exposure is capped at the pre-determined amount.

• Mediation/Arbitration: The parties agree to mediate the case and if it cannot be resolved the ‘mediator/arbitrator’ renders a decision on the case or any parts of the case. This is a form of ‘binding mediation’ and it arguably forces the parties to make their very best effort at concession and resolution before a third party makes an enforceable decision.
  
  Some parties or their counsel do not like the same person guiding the mediation and then acting as an arbitrator and thus they will agree to use a different person as an arbitrator on unresolved issues or the case in total.

• Baseball mediation/arbitration: In this format, if the parties, after attempting to mediate the dispute, cannot resolve it, they then make their last best and final offer. The mediator then acts as an arbitrator and chooses one of the two settlement figures that is closest to the arbitrators evaluation. This forces the parties to be as reasonable and realistic as possible in their negotiations and final offer to settle.
  
  Night Baseball: This is an arbitration proceeding where the arbitrator hears the position of the parties and then renders an award not knowing the sealed offer and demand made by the parties. Which ever offer or demand is closer to the award of the arbitrator prevails. Once again, the goal is to encourage the parties to make their most realistic attempt at resolution.