We also handles matters involving Alternative Dispute Resolution (ADR), including arbitration and mediation, representing clients involved in ADR, as well as being retained as the Neutral, the arbitrator or mediator.

 

ARBITRATION:

 

Arbitration is the submission of a dispute to a neutral or unbiased third person designated by the parties, the arbitrator, who holds a hearing(s) during which the parties have an opportunity to be heard, the presenting of proof aka evidence, witnesses to testify, the opportunity for direct and cross-examination, as well as arguments. Arbitration is an ADR process similar to a trial, often an abbreviated one, promptly focusing on the main issues.

 

Following the hearing, the arbitrator issues a written decision, called an Award, which usually includes the rationale therefor.

 

The Arbitrator often has specific expertise in the field in which the dispute has arisen. With an expert presiding over the dispute, the parties can benefit from the particular understanding and analysis of the facts an expert can provide.

 

Arbitration can be binding or non-binding, and it can address all or a portion of the contested issues between the parties. Non-binding arbitration can be required by a court order or a simple agreement between the parties, while binding arbitration requires an agreement between the parties that they will abide by the Arbitrator’s decision.

 

If the parties stipulate in advance, the award or judgment of the arbiter is binding and is enforceable in the same manner as any contract obligation. The WCAB, and California civil courts, usually enforce a binding award. Appealing a binding an award is theoretically possible but rarely allowed in practice absent an egregious error, such as bias or unlawful discrimination by the arbitrator, an obvious and extreme mathematical error, etc.

 

If the parties do not stipulate in advance that the award is binding, the award is not binding. Non-binding arbitration allows the parties to assess the evidence and witness testimony, and is often used as a helpful basis to evaluate and ultimately settle the case.

 

SOME PROS AND CONS OF ARBITRATION:

 

In theory, arbitration has several advantages over litigation, assuming the arbitrator is highly competent.  Efficiency is perhaps the greatest. Arbitration is usually much faster, cheaper and easier than taking a case through trial, allowing the parties to cut to the chase and have their dispute promptly decided. It also provides greater flexibility, allowing the parties to have more influence over the terms and process of the pre-hearing and hearing.

 

If the arbitration is non-binding, it provides confidential feedback from a neutral expert as to the respective positions of all parties involved, an objective and realistic analysis of the pros and cons of the evidence, testimony and arguments presented. This also provides a more accurate and practical assessment of the case, which should, theoretically, substantially enhance the chances of an amicable resolution.

 

As with anything, there are drawbacks to arbitration, particularly if the Arbitrator is not sufficiently skilled. In a binding arbitration, the absence of control aka finality could be large, since appealing an award is rarely granted by the court, usually only in cases of extreme error or bias.

 

If the arbitration is non-binding, the downsides are reduced, however, there’s the chance that the arbitrator may not be sufficiently skilled and/or the opposing party does not take the arbitration seriously. The opposition may also have excessive demands regarding pre-hearing Discovery, evidence and/or call excessive witnesses. Thus, there’s always the risk that it’s not a good use of time and resources.

 

While each case is different, overall, it’s been our experience in the vast majority of cases that the benefits of ADR, arbitration or mediation, whether binding or non-binding, usually substantially outweigh the costs involved.

 

MEDIATION:

 

Mediation is a process whereby the parties request a impartial third person, the Mediator, to assist them in reaching an amicable resolution or settlement of their dispute. Mediation can mean many things to different people. In the legal context, it’s a form of ADR for parties involved in what is often prolonged uncertain and costly litigation.

 

Generally, the neutral Mediator is retained by two or more parties to a dispute for the purpose of facilitating and/or persuading the parties to adjust or settle their dispute.  The main objective is usually to facilitate a negotiate a settlement or resolution of the matters in dispute.

 

Mediation is a confidential "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution or resolution.

 

The actual process of the mediation varies, depending upon the requests of the parties and the mediator. For example, some mediations can involve the presentation of evidence and/or testimony. In the legal context, it often means the parties summarizing their respective positions in a legal brief, and having extensive discussions and negotiations with the mediator, back and forth, alone and / or with the opposing attorney present, until a settlement is reached or the parties are at an impasse.

 

Why mediation?

Upon first thought, mediation may seem pointless: why pay for a mediator to essentially do what the conflicting parties can handle themselves? In reality, though, it’s often very difficult for parties and counsel in dispute to communicate and negotiate the pros and cons of their respective positions, while realistically considering the views of the opposing party. Thus, the mediator's job is to facilitate communication between the parties, to get the parties to understand the pros and cons of each respective party, to get all involved to more objectively and realistically assess the matter, to be practical, and to eventually reach a win-win situation that settles all disputes.

SOME PROS AND CONS MEDIATION:

Assuming the mediator is highly-competent and the opposing party takes the mediation seriously, there are several advantages to mediating a dispute. A huge one is that mediation promptly provides confidential feedback from a neutral expert as to the respective positions of all parties involved, an objective and realistic analysis of the pros and cons. This provides a more accurate and practical assessment of the case.

 

In addition, the litigants retain control: since mediation is usually voluntary, there’s no agreement, nothing is binding, unless all agree. One still has the option to continue litigating if the mediation does not result in a settlement. Moreover, if a settlement is reached, uncertain, prolonged and costly litigation is avoided, and the settlement agreement should contain more favorable language than that imposed by the court. In addition, the costs are usually modest, the more so if both parties share the fees involved. Thus, the potential benefits can be huge.

 

As with anything, there are drawbacks to mediation, particularly if the Mediator is not sufficiently skilled and influential and/or the opposing party does not take the mediation seriously. Thus, there’s always the risk that it’s not a good use of time and resources. Also, while control and flexibility may be a positive for one party, this flexibility may make it difficult for the opposite side to agree to terms / or settlement language viewed as unfavorable.

 

While each case is different, overall, it’s been our experience in the vast majority of cases that the benefits of ADR, arbitration or mediation, whether binding or non-binding, usually substantially outweigh the costs involved.