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Knowledge Sharing FAQ's


What is Mediation?

When do you need a mediator?
What is fact-finding?
What is a neutral evaluation?
What is a settlement conference?
What is a mini-trial?
What is a summary jury trial?
What is Arbitration?
What is Mediation-Arbitration?
When do you need to arbitrate a dispute?

 

What is Mediation?
Mediation is the process of facilitated communication between opposing parties by an impartial third party, known as the mediator. The objective of the mediator is to assist the parties in reaching a mutually acceptable agreement to end the litigation. The mediator typically uses two core techniques to assist the parties. One technique is reality testing, which serves to challenge the party's current perspective on the case. The second technique is probing for underlying interests, which serves to open up a range of creative solutions to resolve the case. Nationally, over 85% of commercial mediations reach an agreement.

The classic advantages of mediation are that a) the parties retain control of the outcome, b) the setting is informal, c) the process is totally consensual, d) the solutions can be very creative, e) the process is inexpensive, and f) the process encourages personal responsibility. Mediation is valuable for any type of civil litigation except where a judicial precedent is desired or where the case is connected to another case and settlement is premature.

When do you need a mediator?

  • When facts or the law are not clear
  • When you seek a private and informal setting
  • When you seek a timely resolution
  • When you desire to maintain the relationship with the other party
  • When you desire a creative, interest-based solution to the dispute
  • When you desire to retain control of the outcome, rather than accept a judicially-imposed result
  • When you need a substantive expert to serve as a mediator
  • When you do not need a binding precedent

Workplace Resolutions has mediated over 750 disputes and litigated matters.

What is fact-finding?
Fact-finding involves the selection of a neutral third party by opposing parties for the purpose of issuing a non-binding recommendation to enable settlement. There are two kinds of fact finders. One type serves as a hearing officer in a formal setting. The second type of fact finder serves as an investigator. If either party does not accept the recommendation, it is written to serve as a basis for further negotiations.

Fact-finding is commonly used to secure a technical opinion on a breach of contract dispute. For example, fact-finding could be used to evaluate the quality of a printing job that is being contested by the parties, or construction problems with a home.

What is a neutral evaluation?
Neutral Evaluation consists of the role of a third party (often a judge or substantive expert) to evaluate the case and make a non-binding evaluation of the claims as an aid to their negotiations. The Neutral Evaluator does not play an active role in attempting to persuade the parties to agree to a settlement.

Neutral evaluation is common in cases requiring interpretation of the law, or where the parties will be influenced by the opinion of a retired judge or substantive expert.

Neutral Evaluation is often used with mediation, with the Evaluator asking the parties if they would like to mediate the case before seeing the written evaluation. In this type of process, the Evaluator is also a trained mediator, and having heard the information about the case can assist the parties in finding a creative solution to their dispute. Should the parties refuse the offer of mediation or not reach a settlement, the written evaluation is provided to them.

What is a settlement conference?
This process occurs before a scheduled trial and involves the role of a judge, or attorney sitting as a pro tem judge, in attempting to persuade the parties to settle their litigation. The third party often plays the role of a mediator, but relies of the authority of his experience or status to try to persuade the parties to accept a settlement. Many cases settle during settlement conferences, although the pressure to settle often outweighs creative solutions to the case. Clients are typically dissatisfied with their treatment in a settlement conference.

What is a mini-trial?
The classic mini-trial is really not a trial, but rather an articulated form of mediation. The process includes each party to the dispute presenting a summary of its case to the other side, with the neutral taking the role of the judge but not making any decisions. This process is voluntary, not binding, and can be costly because of preparation time. The mini-trial occurs early in the case.

The key to this process is that the key principles on each side attend the mini-trial and listen to all the evidence and argument. Upon completion of the mini-trial, the parties enter facilitated negotiations, using the new perspective from the presentations. There are several variations on the mini-trial.

What is a summary jury trial?
Summary jury trials are sponsored and managed by a court in which the dispute is pending. They result in an advisory "verdict" which may help the parties settle. To be most effective, summary jury trials are typically held when the parties and counsel are almost ready for trial and discovery has been completed.

Summary jury trials can also be binding on stipulation of the parties. In Arizona, a Shortrial (a form of SJT conducted in one day) is binding and often used as an alternative to mandatory arbitration in the court.

What is Arbitration?
Arbitration is a binding ADR process. The Arbitrator is a person selected by the parties to hear evidence and to make a binding award to resolve the litigation. The Arbitrator is a creature of contract between the parties. The parties voluntarily agree to use the arbitration process either by a) following an arbitration clause in a contract, or b) agreeing to submit the existing dispute to arbitration instead of the judicial system. An arbitrator can be selected either directly by the parties, by a court, or by an administrative agency such as the American Arbitration Association. There are very few grounds upon which to vacate an arbitration award.

The classic advantages of arbitration are a) speed to hearing, b) lower attorney costs, c) the binding nature of the award, d) relaxed rules of evidence, e) the private nature of the proceedings, and f) the expertise of the decision-maker. Most commercial cases can be heard in arbitration within 90 days.

What is Mediation-Arbitration?
In this binding ADR process, the roles of the mediator and arbitrator are combined for efficiency. In most cases, the parties agree to allow the neutral to first mediate the dispute. If no agreement is reached, then the parties have already agreed in writing to allow the neutral to issue a binding decision, typically with more evidence. Some neutrals will not agree to such an arrangement because they view it as a conflict of interest.

When do you need to arbitrate a dispute?

      • When factual and legal issues are relatively clear
      • When you seek a private and informal setting
      • When you desire a timely hearing and decision
      • When you prefer a substantive expert deciding the matter
      • When you want to select the decision-maker
      • When you do not need a judicial precedent
      • When you need a final and binding decision

 

Workplace Resolutions has arbitrated over 450 disputes and litigated matters.

 

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