Mediation and Arbitration

Most people think that you resolve a dispute by filing a lawsuit and going to trial.  That is one way to do it. However, there are other effective and cost-efficient ways to resolve disputes, such as mediation, arbitration, and collaborative law.

A mediator is focused on assisting the parties in reaching an agreement, based on mutual compromise, that resolves the dispute.  In an arbitration, the arbitrator will make a decision that resolves the dispute based on the evidence and testimony presented, much the way a judge rules at trial. 

Mediation

The format for mediation depends to some extent upon the mediator, the parties, and the issues.  Mediators require a written statement from both parties, which are also exchanged so each party knows what has been submitted to the mediator.  The mediator might meet with the parties at the same table or “shuttle” between them in separate rooms.

The mediator works to understand the positions of both parties and tries to find common ground to help the parties reach an agreement.

At the end of mediation, the parties may sign a written agreement that completely resolves the dispute.  However, an agreement is not required.  The parties may agree to some issues and sign an agreement regarding only those issues, or they may not reach agreement on any issues and are free to continue on to arbitration or trial to resolve the dispute.

Facilitative Mediation:  Some mediators will only “facilitate” an agreement between the parties.  They do not address whether either proposal is supported by case law or statute or how a judge might rule under the circumstances.  Their goal is to get the parties to reach an agreement by assisting the parties in compromise.

Evaluative Mediation:  Some mediators “evaluate” the parties’ positions from a legal standpoint.  They will indicate whether it is or is not supported by statutes and case law and how they believe a judge would rule on the issues at trial.  This is used to apply pressure to someone who is unrealistic or unyielding in their position and demands.  If a mediator has extensive experience, particularly with trials, their opinion can be very persuasive.  Evaluative mediators also try to facilitate an agreement between the parties and use a combination of both techniques.

Arbitration

Many mediators also work as arbitrators.  Some arbitrators have a set format for arbitration wh

ich operates like a hearing on a motion or a trial before a judge--taking testimony from witnesses and introducing exhibits into evidence.  Arbitrators require written statements from both parties, but some also allow each party to respond to the other’s written statement.  The arbitrator might meet with the parties in person (like a mediation), or might ask clarifying questions of both parties on the phone.  Then they send a written ruling, usually within a week.  The arbitrator does not assist the parties in compromising to reach an agreement.

The most positive aspects of arbitration are that it can be tailored to the issues and individuals involved and the arbitrator has the authority to bind the parties to the decision he or she makes.  As a result, the dispute is resolved and the client avoids the expense of continued legal action and trial.

A mediator or arbitrator will block out either half a day or a whole day for your case, depending upon the number and complexity of the issues.   Court commissioners and judges, on the other hand, are overwhelmed with cases, particularly in family law.  Your family law motion could be one of 15 or 20 that a court commissioner considers in one day, and you or your attorney are granted only a few minutes to argue the merits of your position before they rule.  Clients (and their attorneys) appreciate the opportunity to discuss the issues with the mediator or arbitrator without rigid time constraints.

Many mediators and arbitrators have as much or more legal experience as court commissioners and judges, so you have the benefit of someone with an extensive legal background educating you, assisting you, and making decisions about your case.

The cost of mediation and arbitration depends upon the hourly rate charged, the amount of time required to resolve the dispute, and whether attorneys are involved in assisting the parties.  The hourly rate charged by mediators and arbitrators depends upon their expertise in certain areas of law and varies from approximately $200 to $400 per hour.  Some very experienced mediators or arbitrators who resolve complex business disputes may charge more per hour.  The cost of the mediator or arbitrator is usually shared equally by the parties.

Collaborative Law

Collaborative Law is under construction; check back for more information.

Return to Services