Negotiation, Mediation and Arbitration – Alternative Dispute Resolution (ADR)
Whether you are involved in a family or neighborhood dispute or a lawsuit involving thousands of dollars, these processes should be considered. They are often the more appropriate methods of dispute resolution and can result in a fair, just, reasonable answer for both you and the other party. Settlement and compromise have long been favored in the legal system. In fact, most cases that are filed in a court do settle.
Definition: Negotiation is the most basic means of settling differences. It is back-and-forth communication between the parties to the conflict with the goal of trying to find a solution.
The Process: You may negotiate directly with the other person. You may hire an attorney to negotiate directly with the other side on your behalf. Negotiation allows you to participate directly in decisions that affect you. In the most successful negotiations, the needs of both parties are considered. A negotiated agreement can become a contract and be enforceable.
When and How Negotiation Is Used: Most people negotiate every day. In some circumstances you may want the help of a lawyer to help you negotiate a fair deal. Negotiation is the first method of choice for problem-solving and trying to reach a mutually acceptable agreement. If no agreement is reached, you may pursue any of the other options suggested here.
Characteristics of Negotiation:
Definition: Mediation is a voluntary process in which an impartial person (the mediator) helps with communication and promotes reconciliation between the parties which will allow them to reach a mutually acceptable agreement. Mediation often is the next step if negotiation proves unsuccessful.
The Process: The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make a decision nor force an agreement. The parties directly participate and are responsible for negotiating their own settlement or agreement. At the beginning of the mediation session, the mediator will describe the process and the ground rules. The parties or their attorneys have an opportunity to explain their view of the dispute. Mediation helps each side better understand the other’s point of view. If an agreement is reached, it will generally be reduced to writing. Most people uphold a mediated agreement because they were a part of making it. It can become a contract and be enforceable. If there is no agreement, you have not lost any of your rights and you can pursue other options such as arbitration or going to trial.
When and How Mediation Is Used: When you and the other person are unable to negotiate a resolution to your dispute by yourselves, you may seek the assistance of a mediator who will help you and the other party explore ways of resolving your differences. You may always consult with an attorney prior to finalizing an agreement to be sure that you have made fully informed decisions and that all your rights are protected. Mediation can be used in most conflicts.
Definition: Arbitration is the submission of a disputed matter to an impartial person (the arbitrator) for decision.
The Process: Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are limited.
The arbitrator will conduct a hearing where all of the parties present evidence through documents, exhibits and testimony. Most arbitration proceedings are binding, the right to appeal the arbitrator’s decision is very limited. An arbitrator’s award can be reduced to judgment in a court and thus be enforceable.
How and When Arbitration Is Used: Many contracts have clauses which require that disputes arising out of that contract be arbitrated. You may have seen such a provision when you applied for a credit card or opened a retirement account or other account with a stock broker. If you agree to arbitrate or sign a contract with an arbitration clause, you should understand that the arbitrator may make the final decision and that you may be waiving your right to a trial in court.
Characteristics of Arbitration:
Definition: Litigation is the use of the courts and civil justice system to resolve legal controversies.
The Process: Litigation is begun by filing a lawsuit in a court. Specific rules of procedure, discovery and presentation of evidence must be followed. The attorney for the other side will want to take your deposition to learn more about the facts as you see them and your position in the case. There can be a number of court appearances by you and/or your lawyer. If the parties cannot agree how to settle the case, either the judge or a jury will decide the dispute for you through a trial.
A trial is a formal judicial proceeding allowing full examination and determination of all the issues between the parties with each side presenting its case to either a jury or a judge. The decision is made by applying the facts of the case to the applicable law. That verdict or decision can conclude the litigation process and be enforceable; however, if appropriate, the loser can appeal the decision to a higher court. In some cases, the losing party may have to pay the costs of the law suit and may have to pay the other party’s attorney fees.
How and When Litigation Is Used: If you want your day in court with a judge or jury of your peers deciding the outcome, then the pursuit of litigation and trial of the case is for you.
If you cannot settle your differences through negotiation, mediation, arbitration or some other means, then you should pursue litigation through the courts with your lawyer.
Characteristics of Litigation: