How Do I Know My Mediator is Legitimate?

When engaging in mediation, it is crucial to ensure that your mediator is legitimate and trustworthy. Mediation involves sensitive and personal matters, and you want to have confidence in the mediator’s abilities and ethical conduct. In this article, we will explore some key indicators to help you determine if your mediator is legitimate.

Research and Accreditation

One of the first steps in verifying the legitimacy of a mediator is conducting thorough research. Look for information regarding the mediator’s credentials, qualifications, and professional background. Legitimate mediators typically have specialized training and certifications in mediation. Check if the mediator has been accredited by recognized professional organizations or has undergone extensive mediation training. Accreditation provides assurance that the mediator follows ethical guidelines and operates within established standards.

Professional Experience and Expertise

Another factor to consider is the mediator’s professional experience and expertise. Assess their track record in successfully mediating conflicts similar to yours. The mediator should have a deep understanding of the specific area of dispute, whether it’s family law, business disputes, or workplace conflicts.

Reviews and Testimonials

Seek out reviews and testimonials from past clients who have engaged the same mediator. Their feedback can offer valuable insights into the mediator’s skills, professionalism, and ability to facilitate a resolution. Look for testimonials that speak to the mediator’s ability to remain neutral, respectful, and impartial throughout the mediation process.

Ethical Standards and Codes of Conduct

Legitimate mediators adhere to ethical standards and codes of conduct that govern their professional practice. These standards ensure fairness, confidentiality, and impartiality during the mediation process. Research if the mediator you are considering is a member of reputable mediation associations or organizations that uphold ethical guidelines. These associations often have a complaint process in place, further ensuring a mediator’s legitimacy.

Referrals from Trusted Sources

Seek referrals from trusted sources, such as friends, family, or legal professionals who have engaged in mediation. Their personal experiences and recommendations can help you find a legitimate mediator. Additionally, you can consult legal or counseling professionals who work with mediators regularly. These professionals can provide guidance and recommend trusted mediators within their networks.

Trust Your Instincts

Lastly, trust your instincts when evaluating the legitimacy of a mediator. As mediation is a process that requires open communication and trust, it is important to have a positive rapport with your mediator. If something feels off or if the mediator doesn’t provide clear and satisfactory answers to your questions, it may be a sign to reconsider your choice.

Conclusion

Choosing a legitimate mediator is essential to ensure a successful and productive mediation process. By conducting thorough research, checking their accreditation and qualifications, seeking feedback from previous clients, and assessing their adherence to ethical guidelines, you can determine the legitimacy and trustworthiness of a mediator. Additionally, referrals from trusted sources and your own instincts play a vital role in making an informed decision. Remember, a skilled and legitimate mediator can guide you towards a resolution in a fair, impartial, and respectful manner.

Introduction

As there is not set professional certificate that signifies that a mediator has gone through appropriate training, one must rely on professional associations to determine a mediator’s level of skill.  Professional associations maintain standards that they require for their members to have achieved as well as a code of conduct.  These protections ensure that the mediation services provider is reliable and ethical.  The failure to ascertain if the service provider has had adequate training may lead to breaches of confidentiality or the code of conduct expected of a mediator.

Where can one find mediation services?

The aforementioned professional organizations maintain a director of mediators that should be searchable by location.  One can usually trust these directories so long as the professional organization is reputable.  Being listed in these directories is one of the benefits mediation services pay membership fees and conform to standards of conduct as prescribed by the professional organization.  Search engines and local directories can also lead you to local mediation services where you will be able to vet their credentials before committing to use their service.

What is the role of mediation services?

Mediation services should not be used in lieu of legal counsel.  The mediator may have object and working knowledge of the field where the dispute occurs, but lawyers are necessary to ensure that the agreement reached conforms to legal restrictions placed by the jurisdiction before it is notarized.  Mediators will play whatever role the two clients agree upon prior to the start of mediation.  While the mediator has no authority to enforce a settlement, he is responsible for the flow of communication between two parties and maintaining an environment conducive to reaching an agreement.

There remains a debate within the mediation services community as to how active of a role a mediator should play.  For now, it is at the discretion of the parties to determine the extent that the mediator becomes involved in the negotiations.  Clearly, if the mediator was to start dispensing advice to either party, that would threaten the assumption of neutrality, placing the integrity of the mediation in question.

What should I do after seeking mediation services?

Although you will discuss and defend your point of view during the mediation, it is important to prepare and organize your case, meeting with the mediator if necessary, to properly prepare for mediation.  The mediator will brief you on the structure of the proceedings and what will be expected of the party during the proceedings.  Being prepared will clarify your conditions for reaching an agreement, which will in turn help the mediator clearly communicate your needs to the other party.

5 Steps to the Mediation Process

Introduction

Mediation is a confidential and informal process that helps resolve conflicts and disputes in a non-adversarial manner. It presents an opportunity for parties to come together and communicate in a positive manner, with the help of a neutral third party. In this article, we will discuss the five steps of the mediation process.

Step 1: Mediator’s Introduction

The mediation process begins with the mediator introducing themselves to all parties involved in the dispute. The mediator will explain their role and the purpose of the mediation session. The mediator will also establish guidelines for the session, including the importance of confidentiality, respect for all parties, and agreement to negotiate in good faith.

Step 2: Opening Statements

After the mediator’s introduction, the parties involved in the dispute will have the opportunity to make their opening statements. Each party can share their perspective, concerns, and goals for the mediation session. The mediator may ask clarifying questions to ensure all parties have a clear understanding of each other’s position.

Step 3: Negotiation

The negotiation phase is the heart of the mediation process. The mediator will facilitate a discussion between the parties, to identify potential solutions to the dispute. The mediator will encourage open and respectful communication to ensure all parties feel comfortable during the negotiation process. The mediator may suggest different solutions and encourage parties to compromise to reach a mutually acceptable agreement.

Step 4: Agreement

If a solution or agreement is reached, the mediator will document the terms of the agreement. The agreement may be verbal or written, depending on the preferences of all parties involved. The mediator will ensure that all parties understand and agree to the terms of the agreement before it is signed.

Step 5: Closure

The final step of the mediation process is closure. The mediator will ensure that all parties feel satisfied with the terms of the agreement, and that they understand the enforceability and legal consequences of the agreement. The mediator will also discuss next steps and the possibility of follow-up meetings if necessary.

Conclusion

Mediation is a collaborative and voluntary process that promotes communication and seeks to resolve conflicts and disputes. The mediation process follows a structured framework, including an introduction by the mediator, opening statements by all parties, negotiation, agreement, and closure. This process is crucial in ensuring all parties are heard, respected, and find a mutually acceptable resolution to their dispute. By understanding the steps of the mediation process, parties can feel prepared and confident during the mediation session.

What is the mediation process?

There are essentially 5 steps to a successful mediation.  They are comprised of the introduction; statement of the problem; information gathering; identification of the problems; bargaining; and finally, settlement.

INTRODUCTORY MEETING

The introductory portion of the mediation is a way for all parties involved to feel comfortable with the matter.  The mediator will usually introduce him or herself to the parties and explain the role that the mediator will take, insure that he/she is a neutral individual whose goal is to insure are result that is both fair and just for each party involved.  The mediator, if given pre-mediation documents, will give a general statement about what he/she sees as the issue involved.  Lastly the mediator will outline what the process will be in the mediation and discuss the protocol that should be followed.

STATEMENT OF THE PROBLEM

After the introduction the mediator will give each party the opportunity to explain the issue and tell their side of the story.  It is imperative at this time that the party not speaking is silent.  The entire point of mediation is to come to a reasonable agreement, when parties start bickering with each other the point of mediation is lost.

INFORMATION GATHERING

If they have not already been submitted to the mediator, the mediator will request something in the form of a brief detailing the facts, evidence and any other pertinent information that may help the mediator come to a conclusion.  After this the mediator will ask questions of the parties individually in order to flush out reasons, both fiscal and emotional, for why that party has operated in a certain manner or why they seek a certain result.

IDENTIFICATION OF THE PROBLEM

This step is somewhat self-explanatory.  The mediator, through the information received through briefs and previous dialogue will discuss what he/she feels is the heart of the issue.

BARGAINING

Once the issue or issues have been determined the bargaining process will begin.  The bargaining session is the most creative of the steps.  It can involve many different types of focus including group processes, discussion groups and hypotheticals.  A common usage is the “caucus.” Often the mediator will put a proposed settlement on the table and require the participants to amend the settlement until they come to a reasonable solution.  Another route is that the mediator will meet with each party privately to hammer out negotiations.  The private meetings are confidential and provide an environment, outside the view of the other party, to brainstorm and discuss emotions and fears.

How long will it take to mediate?

Mediation, in genera will cost between $3,000 and $4,000 which is split between the parties.  This includes the cost of preparing documents, the mediator’s fees, representation, etc.  It is also less time consuming and the average mediation takes about 3-5 days depending on the complexity of the matter.  As with anything else, this is a guideline and the cost and time associated with mediation may take longer and cost more.  Either way, it is less costly, quicker, and more efficient than going to trial.

Criminal Litigation: Understanding the Process

Criminal litigation is a legal proceeding that takes place when a person is accused of a crime. It is a complex legal process that involves criminal prosecution, defendant representation, and a trial in court. In this article, we will discuss the key aspects of criminal litigation, including the pre-trial process, trial, and the appeals stage.

Pre-Trial Process

The pre-trial process begins when an individual is arrested and booked into jail. During the pre-trial process, the prosecution will conduct an investigation and gather evidence against the defendant. The defendant’s attorney may also conduct an investigation to obtain evidence that supports their client’s defense. During this time, the prosecution and defense team will engage in plea bargaining discussions to reach a plea agreement that can avoid a trial. If a plea agreement is not reached, the case moves to the trial phase.

Trial

The trial is the most important stage of the criminal litigation process. During the trial, the prosecution presents evidence to the court supporting their accusations against the defendant. The defense attorney will challenge the prosecution’s evidence and present evidence to support their client’s case. The trial may be a bench trial, where a judge decides the case, or a jury trial, where a group of impartial peers decides the case. The trial concludes when the verdict is announced, either guilty or not guilty.

Appeals

If the defendant is found guilty at trial, they have the option to appeal the decision to a higher court. The appeals process involves presenting legal arguments to a higher court to overturn the original conviction. The appeals process is not an opportunity to present new evidence but instead focuses on whether the trial was conducted fairly and the defendant’s rights were protected during the process.

Conclusion

Criminal litigation is a complex and intricate process that can have severe consequences for both the defendant and the prosecution. Understanding the different stages of the process, from pre-trial to trial and appeals, is crucial in navigating the legal system. By having a clear understanding of the process and working with a skilled criminal defense attorney, defendants can protect their rights, present a strong defense, and achieve the best possible outcome in their case.

What Is Criminal Litigation?

Criminal Litigation is the process of going to trial in a criminal court to either prosecute or defend oneself in a criminal matter.  The Due Process clause of the United States Constitution specifically states that individuals “may not be deprived of life, liberty or property without due process of law.” In leamans terms this means that prior to the government ordering incarceration for an individual who has, allegedly, committed a crime the government must give that person his day in court.  Criminal Litigation may involve a misdemeanor, often defined as a crime with an incarceration period of no more than 12 months and/or a fine not to be above a certain amount.  It may also involve a felony, which is categorized, generally, as crimes that require longer jail time and/or higher fines.  Criminal Litigation can take place in either Federal or State Court depending on the nature of the crime.

What Is The Difference Between Civil And Criminal Litigation?

There are a number of essential differences between civil and Criminal Litigation.  First and foremost, CRIMINAL LITIGATION involves the prosecution by the State or Federal government of a defendant charged with a crime.  Civil litigation involves matters between individuals or entities against each other for matters such as torts and contract disputes.  The idea of CRIMINAL LITIGATION is to punish, the purpose of CIVIL LITIGATION is to “correct a wrong.”

Am I Entitled To Legal Representation In Criminal Litigation?

The Supreme Court decision in Gideon v. Wainwright single handedly ended the debate over whether or not a defendant charged with a felony is entitled to court appointed counsel, also known as a public defender.  Argersinger v. Hamlin built on this precedent by noting that the right to counsel to all misdemeanor state proceedings where there is a possibility of a loss of liberty.  As for misdemeanor’s that involve only the imposition of a fine, whether it be minor or excessive the “jury is still out” but some States have recognized that the imposition of excessive fines are considered criminal and as such the right to counsel under the 6th Amendment is necessary.  As with any other legal matter it is important to research and discover the procedural statutes and case precedents in your State to determine your rights or those of others.

What Are The Procedural Aspects Of Criminal Litigation?

Because being charged with a criminal offense is such a serious matter and not only carries with it possible incarceration, criminal fines, and/or public stigma there are numerous safeguards put into place.  Many States in the Union require that the State present their evidence to a grand jury prior to charging a suspect of a felony.  A grand jury, unlike a trial jury, does not sit for just one case and does not administer guilt or innocence.  The job of the grand jury is strictly to listen to the evidence presented by the prosecution and make a determination as to whether the State should file criminal charges against a defendant.

What Are My Rights When Subjected To Criminal Litigation?

In brief, there are numerous Constitutional rights associated with Criminal Litigation.  States have expanded on these rights in some cases.  For example, New York’s 6th Amendment protection goes above and beyond that proscribed by the Constitution and the Federal laws.  Most importantly, a defendant is protected by the 5th and 6th Amendments to the Constitution.  A thorough reading and understanding of them is essential to insure that your rights are being protected.

Arbitrator Overview: Understanding the Role of a Neutral Third Party

Arbitration is a private dispute resolution process that involves the use of a neutral third party called an arbitrator. The arbitrator is appointed by the parties involved in the dispute to make a binding decision that resolves the issue. In this article, we will discuss the role of an arbitrator and how they assist in resolving disputes.

Arbitrator Qualifications

Arbitrators are typically selected based on their qualifications and experience. The parties involved in the dispute may agree on the qualifications required for the arbitrator, including their industry expertise and legal background. The selected arbitrator should be objective, impartial, and free from any conflicts of interest.

Arbitration Process

The arbitration process typically begins with the appointment of an arbitrator. The arbitrator will then establish guidelines for the arbitration process, including procedural rules and timelines. The arbitrator will facilitate communication between both parties and conduct an investigation to determine facts and evidence related to the dispute. After conducting the investigation, the arbitrator will make a binding decision on the dispute.

Arbitration Advantages

Arbitration has several advantages over traditional litigation. Arbitration is usually much quicker and less expensive than litigation, making it a preferred option for many businesses and individuals seeking to resolve disputes. Arbitration is also confidential, which can be beneficial for parties who do not want to air their dispute in a public court. Additionally, arbitrators have expertise and knowledge in the specific industry or area of law related to the dispute, providing an expert decision.

Disadvantages of Arbitration

While arbitration has many advantages, it also has some disadvantages. For example, parties may have limited access to discovery procedures or appeals, as in traditional litigation. Additionally, while the parties may choose the arbitrator, they are unable to control the final outcome of the decision.

Conclusion

Arbitration is a popular dispute resolution process that involves the use of a neutral third party called an arbitrator. Arbitrators are selected based on their qualifications, experience, and impartiality. During the arbitration process, the arbitrator facilitates communication between both parties, conducts an investigation and makes a binding decision on the dispute. While there are some disadvantages to arbitration, including limited access to discovery and appeals, it is an efficient and effective way to resolve disputes in a confidential and neutral setting.

What is an arbitrator?

An arbitrator is neutral individual brought in to help negotiate an agreement between parties in what is known as arbitration.  An arbitrator is not court appointed and the parties themselves are the ones who choose the arbitrator.  Arbitrators are used in civil matters, especially contract disputes and depending on the specifics their decision can be either binding or non-binding.

What are the qualifications for being an arbitrator?

The American Arbitration Association keeps a current roster of Arbitrators and lists a number of qualifications that an individual must meet in order to be an arbitrator.  These qualifications include:

·?

Even though an arbitrator is free to make his/her own determinations about disputes there are essential rules that an arbitrator must follow.  Most importantly is neutrality.  An arbitrator must have no bias or prejudice towards any party or matter involved and is capable of applying standard principles to the matter at hand.   The arbitrator must also be capable of managing the hearing process as well as making an impartial evaluation of evidence.

Why would I want an arbitrator?

There are numerous reasons why parties on the track of litigation may want an arbitrator make a decision in lieu of court intervention.  One of the most compelling reasons is the cost.  Court costs, attorney’s fees, and judgment awards can easily add up to the tens of thousands of dollars.  In contrast, arbitration, although costly, is comparatively inexpensive.  The cost of an arbitrator can often be between $1,000 and $2,000 per day.  Arbitration, in general, will last than $10,000 on average, and that cost will be split between the parties involved.

Another reason to get an arbitrator is that arbitration is considerably less time consuming than litigation.  Litigation can last for months, if not years, when you factor in pre-trial, trial, appeals, etc.  In contrast, arbitration will consist of 3 to 4 days on average.

Other reasons for picking an arbitrator are that arbitration is not a public issue and the exclusionary rules of evidence do not apply.  Because many potential litigants do not wish to have their “dirty laundry” brought into the public eye they might choose arbitration instead.  Arbitration is a private matter with no public record.  The arbitrator is sworn to uphold confidentiality.  For this reason, many corporations require mandatory arbitration so that these issues are not brought into the public eye.  Arbitration is also considered a “free for all.” The exclusionary rules of evidence are not applicable as are the rules of civil procedure.  Depending on the evidence this may be a positive or negative aspect of arbitration, depending on who holds damning evidence that would be considered inadmissible in a court of law.

Arbitration: Is it Required?

Arbitration is an out-of-court process whereby a neutral third-party arbitrator renders a final and binding decision on a dispute between two parties. Notably, some contractual agreements mandate arbitration, while others do not. In this article, we will explore the question of whether arbitration is required and under what circumstances.

What is Arbitration?

Before we delve into the issue of whether arbitration is required, it is essential to understand what it entails. Arbitration is a form of Alternative Dispute Resolution (ADR) where two parties agree to settle their dispute by way of a third-party arbitrator. The decision of the arbitrator is binding and final, meaning that the parties cannot appeal to a higher court. Arbitration provides a chance to resolve disputes outside of the judicial system, alleviating the expensive, time-consuming, and public nature of the traditional litigation process.

When is Arbitration Required?

Arbitration may be required in certain scenarios, such as:

Employment Contracts

Often, employment contracts mandate that an employee cannot take a dispute to court but must opt for arbitration instead. With this type of agreement, arbitration is necessitated.

Consumer Contracts and Agreements

Consumer contracts sometimes require that individual disputes be resolved through arbitration. When a consumer agrees to, say, the terms and conditions of a product or service they purchase, they might also consent to arbitration as a way to settle disputes.

Arbitration Clauses in Commercial Contracts

Commercial agreements may contain arbitration clauses that mandate arbitration. These clauses may outline that disputes arising between the signatories to the contract shall be resolved through an arbitrator.

Is Arbitration Always Required?

It is common for some contracts to exclude the arbitration clause and rather allow court proceedings to take place. This is often dependent on the negotiation between the signatories to the contract. Many businesses, for example, choose to have arbitration clauses placed in contracts because it allows for quicker resolution of disputes, confidentiality, reduced litigation costs, and flexibility in the dispute resolution process.

Conclusion

While it is not mandated that legal disputes be resolved only through arbitration, it has advantages that make it an attractive option for many parties. There are instances where both parties agree to resolve a dispute in court, through mediation, or another dispute resolution process. Nonetheless, if you are a signatory to an agreement that contains an arbitration clause, you must honor it. It is essential to understand that entering into a contract with an arbitration clause means committing to ADR if a dispute arises. Arbitration is a beneficial means of resolving disputes, particularly when the parties value privacy, speed, flexibility, and cost-effectiveness. As such, it is advisable to operate with discretion and obtain legal advice before signing any agreement.

What is Arbitration?

Arbitration is a form of alternate dispute resolution in which an outside party, known as an arbitrator, evaluates a civil dispute between parties and, in essence, acts as the “judge and jury.”  The decision that the arbitrator makes is often binding upon the parties involved.  A court of law is, in no way, involved in arbitration and will only interfere when there are egregious actions taken on the part of the arbitrator.

When is arbitration binding?

Arbitration can be either “binding” or “non-binding.”  Binding arbitration means that the successful party in arbitration takes an arbitration award.  If the unsuccessful party to the arbitration refuses to honor the arbitration award the court can interfere and force the unsuccessful party to honor the arbitration agreement.

“Non-binding” arbitration is exactly what it sounds like, arbitration that does not result in a permanent resolution that can be enforced by the court system.  Non-binding arbitration is usually used as a forum to resolve differences between the parties but no one must be bound by the arbitrator’s decision.

Are there any safeguards to arbitration?

As noted earlier, arbitration occurs with little to no court involvement.  As such it is up to the parties involved to be cautious about whom they select as an arbitrator.  At times the result of arbitration can be unjust and when arbitration results in a completely unfair result the courts may intercede.  The instances when a court will review an arbitration award include:

·         Corruption, fraud, or miscarriage in arbitration proceedings

·         Bias of the arbitrator chosen to be neutral

·         The arbitration exceeded the powers authorized

Can arbitration be required?

As mentioned above, a court of law may not impose mandatory arbitration.  However, the parties to a contract may stipulate the imposition of arbitration.  This comes up most often when signing a boilerplate contract.  Somewhere in a boilerplate contract will arise a subsection requiring mandatory arbitration or mediation.  These sections are customary in many contracts and are a way for corporations and other entities to settle legal matters out of court.  The policy behind this is not only financial but also based on public perception.

Where matters that arise in front of a court of law are not only publicized in the media and open to the public, they are also part of the public record and accessible to all.  Arbitration, on the other hand is a private matter and the negotiations involved, and the results, are not a matter of public record and often take place in private.

Are arbitration clauses enforceable?

Current Supreme Court decisions have solidified the enforceability of mandatory arbitration clauses.  Specifically in Buckeye Check Cashing, Inc. v. Cardegna the Supreme Court held that even if a contract is found to be completely void on its face, the mandatory arbitration clause will stand.  This is a prime example of how the judicial system favors arbitration.

ADR (Alternate Dispute Resolution)

Introduction

ADR is a process that provides parties with an alternative means of resolving disputes outside of a traditional court trial. It involves a neutral or impartial third party who assists the parties in resolving their dispute in an informal and private manner. In this article, we will discuss what ADR is, the various types of ADR, and its benefits.

What is ADR?

ADR stands for Alternative Dispute Resolution, which is a set of processes developed to settle disputes without the necessity of traditional litigation. ADR involves methods such as mediation, arbitration, conciliation, and negotiation, among others.

Types of ADR

Mediation

Mediation is a voluntary process in which a mediator provides facilitation as parties seek to negotiate mutually acceptable solutions. It involves private meetings between the parties and a mediator who helps them to come to an agreement.

Arbitration

Arbitration is a process where a neutral arbitrator is appointed to hear the dispute between the parties and is empowered to make a binding decision. Arbitration is less formal than traditional litigation, and the parties have more control over the process.

Negotiation

Negotiation is an informal process where the parties attempt to reach a resolution of the dispute by communicating with each other. The parties may engage in direct negotiations, or they may use lawyers or other representatives.

Conciliation

Conciliation is a process similar to mediation. A conciliator assists the parties in communicating better and provides solutions or options to the parties to help reach a settlement.

Benefits of ADR

Less Expensive

ADR processes are typically less costly than a court trial, making ADR a more affordable and accessible option for many people.

Time-saving

ADR processes can be more expedient than a traditional court trial, making it possible to resolve disputes quickly and efficiently.

Confidentiality

ADR promotes confidentiality by keeping the proceedings and the decision-making confidential.

Greater opportunity for parties to be involved

ADR processes allow parties to participate actively in the resolution of their dispute. It gives parties more control over the outcome, which can lead to a more satisfactory resolution.

Conclusion

ADR offers a customized forum for resolving various types of disputes outside of a courtroom setting. The numerous advantages of ADR make it a preferred alternative to traditional litigation for many parties. The flexibility of ADR allows the parties to tailor their dispute resolution approach to their particular needs better. By considering an ADR process, many parties can save significant amounts on legal fees, reduce time spent in litigation, and obtain more satisfactory outcomes.

What is ADR, or Alternate Dispute Resolution?

ADR, or Alternate Dispute Resolution is a term that embodies a number of different methods for settling a civil matter without the involvement of formal litigation in court of law.  ADR can take many forms, most popularly are arbitration, mediation, collaborative law and negotiation.  ADR is a process developed so that parties contemplating litigation have an alternate route to settle their disputes.  The judicial system is often clogged with pending cases and results in a strain on both the time and resources of the court system.  For that reason the judicial system favors ADR in the legal process.

What are the advantages and disadvantages of ADR?

Although courts favor and encourage ADR that is all they can do.  It is up to the parties involved in the dispute to decide for themselves whether or not to use ADR and abide by the results.

One difference between litigation and ADR is that, unlike litigation, ADR is not binding on the parties.  The exception to this caveat is arbitration, which will be found to be binding.  Of course, whether this is an advantage or disadvantage depends on what side of the ADR result a party is on.

An advantage of ADR is that it is less costly and less time consuming than civil litigation.  Attorney’s fees, court costs, and numerous other financial burdens exist when parties involve themselves in litigation.  On the other hand, ADR usually results in a less costly and swifter method of resolving a matter.

As mentioned arbitration is the only method of ADR that is binding on the parties, all other forms simply try to negotiate a positive settlement.  The object is to either come to an amicable solution or to predict what will result from litigation in a court of law, if the matter were to proceed.

Can ADR be required?

As mentioned above, a court of law may not impose mandatory ADR.  However, the parties to a contract may stipulate the imposition of ADR.  This comes up most often when signing a boilerplate contract.  Somewhere in a boilerplate contract will arise a subsection requiring mandatory arbitration or mediation.  These sections are customary in many contracts and are a way for corporations and other entities to settle legal matters out of court.  The policy behind this is not only financial but also based on public perception.

Where matters that arise in front of a court of law are not only publicized in the media and open to the public, they are also part of the public record and accessible to all.  ADR, on the other hand is a private matter and the negotiations involved, and the results, are not a matter of public record and often take place in private.

Are ADR clauses enforceable?

Current Supreme Court decisions have solidified the enforceability of mandatory ADR clauses.  Specifically in Buckeye Check Cashing, Inc. v. Cardegna the Supreme Court held that even if a contract is found to be completely void on its face, the mandatory ADR clause will stand.  This is a prime example of how the judicial system favors ADR.

Mediator Advantages

Introduction

Mediation is a valuable form of alternative dispute resolution that many people and organizations prefer to traditional litigation. It involves a neutral and impartial third-party mediator who assists parties in resolving their dispute by facilitating communication, identifying issues of common concern, exploring possible solutions, and developing a mutually acceptable agreement. In this article, we will explore the advantages of using a mediator to resolve disputes.

Experience and Training

A mediator is a trained professional who has experience in managing difficult conversations and resolving disputes. Mediators use their knowledge and training to promote communication between parties and ensure that the dialogue remains calm, respectful, and productive. They can help parties to see the issues from a different perspective, understand the other party’s point of view, and identify new possibilities for resolution.

Impartiality

Mediators are neutral third parties who do not take sides in a dispute. They are committed to helping the parties reach a mutually acceptable resolution without favoring one party over the other. Their impartiality promotes a safe and non-threatening environment for all parties involved.

Confidentiality

Confidentiality is an essential aspect of mediation. The mediation process is private and confidential, which allows the parties to speak openly and freely without fear of their discussions being used against them in a court of law. As a result, parties involved in mediation are more forthcoming with information and more willing to settle disputes.

Cost-effective

Mediation is a cost-effective way of resolving disputes. Compared to a traditional court trial, the cost of mediation is usually much lower because it bypasses most of the court fees and costs involved in litigation. Additionally, mediation tends to be a quicker process than litigating, saving the parties time and money.

Flexibility

Mediation provides flexibility and more control to parties. The mediator guides the parties through the mediation process without imposing a solution. In contrast, traditional court trials usually follow a fixed agenda with parties having little control over the outcome. Mediation provides parties with an opportunity to schedule sessions that are convenient for all involved, and the parties can choose to terminate the process at any time if it is not productive.

Conclusion

Mediation is a valuable means of resolving disputes. The advantages of using a mediator are numerous, including the experience and training of mediators, impartiality, confidentiality, cost-effectiveness, and flexibility. These benefits make mediation a preferred alternative to traditional litigation for many parties. By considering mediation, parties can save significant amounts on legal fees, reduce time spent in litigation, and obtain more satisfactory outcomes.

What is a mediator?

A mediator is an individual, appointed by the parties to a legal conflict, whose sole job is to listen, evaluate and help those parties come to an amicable solution that will, hopefully, prevent litigation in a court of law.  Mediators are often, but need not be members of the legal system.  Some possess law degrees, and some are often former judges, where as others possess no more than a bachelor’s degree and rely on their expertise in negotiation and problem solving to help parties on the verge of civil litigation to come to a compromise.

There are few state laws that require a specific license in order to be a mediator but it is often found that a mediator will possess some background in mediation skills, whether it be in undergraduate classes in negotiation and alternate dispute resolution or a certificate of training.

What are the advantages to having a mediator?

There are numerous advantages to having a mediator.  First, and foremost, is the cost.  Going to trial can be expensive.  Court costs and attorney’s fees can quickly accumulate.  On the other hand, the process of mediation is comparably inexpensive and less time consuming.  Depending on the legal matter involved mediators can be supplied by the community or even a court for free.  In other matters mediators can charge between $1,000 or $2,000 per day for their services.

A second benefit to having a mediator is that a mediator’s decision is not binding on any of the parties.  The mediator’s job is merely to evaluate the situation and help the parties come to a solution.  The mediator’s determination is often viewed as a way of foreshadowing what might happen if a matter goes into the litigation stages.

How do I choose a mediator?

A mediator is not court appointed, in fact a court of law has nothing to do with mediation.  In many situations a mediator may be found through a roster maintained by the court.  Mediators can also be located through the private sector and the wealth of mediators available should result in the retention of one that has specific expertise in the area that your conflict arises out of.

When searching for a mediator parties involved should keep certain things in mind.  First and foremost a mediator who is knowledgeable in the field is highly important.  It is pertinent that a mediator be found who can be neutral to the matter.  For example, it would be problematic for you to choose a mediator that, upon subsequent research, is the brother-in-law of the other party to the matter.

Arbitration Benefits: A Faster, Cheaper Way to Resolve Disputes

Arbitration is a common method of dispute resolution used by individuals, businesses, and organizations across a variety of industries. It is often preferred due to its many benefits over traditional litigation. In this article, we will discuss the primary benefits of arbitration as a method of dispute resolution.

Speed

One of the most significant benefits of arbitration is speed. In most cases, the arbitration process is completed much more quickly than litigation. Parties can avoid the lengthy delays in the court system and obtain a resolution with greater efficiency. Additionally, the arbitration process is typically more streamlined, with rules and procedures designed to move the process along promptly.

Cost Savings

Beyond speed, arbitration is often significantly cheaper than litigation. The court system is known for its extensive fees, while arbitrators are often much less expensive. Furthermore, the streamlined nature of arbitration saves on fees associated with court clerks, court reporters, and other court personnel. Parties can save on other costs too, such as legal fees, as the procedure is usually less complicated than in traditional litigation.

Expertise

Another benefit of arbitration is that arbitrators are often experts in their fields. Parties can choose an arbitrator with experience and knowledge in the specific area of their dispute, leading to a more informed and fair decision. For instance, hiring an arbitrator with an engineering background would likely provide a quicker resolution to a construction-related dispute.

Flexibility

Arbitration is an extremely flexible process, and parties may have more control over the proceeding. The parties can determine the location, the rules governing the process, and who will be the arbitrator. Arbitrations are much less formal than courtroom proceedings, which means that the parties can also agree on other logistics such as the types of questions asked, rules governing evidence, etc.

Confidentiality

Another prominent benefit of arbitration is confidentiality. The proceeding is held out of court, meaning that information disclosed during the process is not part of the public record. This makes it an attractive option for disputes involving confidential information or sensitive business matters. Parties can also agree to include additional confidentiality agreements in the arbitration proceeding, which will enhance its privacy.

Conclusion

Arbitration has many benefits as a method for resolving disputes, including speed, cost savings, flexibility, confidentiality, and expertise. The arbitration process is often preferred over traditional litigation due to its various advantages, making it an efficient, less expensive, and more customizable option for dispute resolution.

Introduction

Arbitration is a form of alternative dispute resolution that avoids litigation by involving one or several impartial individuals to impose a (usually) legally binding settlement.  This process typically occurs as a contractually mandated obligation to settle disputes between the signing parties.  Unlike mediation, the arbitrator does not attempt to help the parties reach a settlement, but rather remains impartial and unobtrusive until the decision is made.  The only role of the arbitrator is to determine where and if wrongdoing occur and determine appropriate redress for the injured party.

What are the benefits of arbitration?

Arbitration is beneficial as a means to avoid litigation, which can be lengthy and expensive for both parties.  It allows an informed third party to deliver the ruling, rather than a legal system that may be uninformed about the nature of contents of the dispute.  Litigation also binds the parties to relevant laws and statues in the jurisdiction the case proceeds in, whereas the two parties can agree upon the language and framework of the arbitration.  Lastly, arbitration is non-public and can be confidential to suit the needs of both parties and prevent private details about the disagreement becoming public knowledge.

However, there are some disadvantages to arbitration.  Arbitration may become expensive with will lead smaller parties to seek a quicker resolution, before the costs of paying the arbitrators becomes crippling.  By agreeing to arbitration, the parties generally surrender their right to seek redress in court and instead must abide by the binding arbitration agreement.  The Federal Arbitration Act determined this, as the government supported resolving some disagreements without burdening the legal system.

There is a chance that arbitration clauses may bind the injured party to a biased arbitrator that will support the party that offered the contract.  Some jurisdictions bar this practice and require arbitration to take place in front of a neutral third party.  To prevent ambiguity, there are several standards by which arbitration clauses may be written so that the number of arbitrators, legal language, location and governing law is clear to the weaker party.

How do I file for arbitration?

Firstly, one must determine if the situation merits arbitration or is eligible for arbitration.  Many agreements will include an arbitration clause although some agreements to arbitrate may happen after the dispute has occurred.  This agreement is called a “submission agreement.”  The parties will the enter arbitration as determined in either the clause or the submission agreement.  Arbitration will vary widely depending on the prior agreement, although it must always include a non-based third party that determines the settlement.  Non-binding arbitration for example, advises both parties on the merits of their position and makes a recommendation based on the merits of the party’s claims.  One of the more famous forms of arbitration is salary or “baseball” arbitration where the arbiter makes an absolute judgment on the merits of either’s side position, in this case, salary, and determines if the employer or the employee is entitled to his determination of an acceptable salary.

Source: https://www.sec.gov/answers/arbproc.htm