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"The
notion that most people want robed judges, well-dressed
lawyers, and fine courtroom settings to resolve
disputes is not correct. People with problems, like
people with pains, want relief, and they want it
as quickly and as inexpensively as possible."
- United States Supreme Court Chief Justice (Ret.)
Warren Burger |
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Mediation & Arbitration FAQs
Q: WHAT IS MEDIATION?
In mediation an independent and neutral mediator assists parties
in reaching their own decision. The goal of mediation is a
satisfactory resolution of the issues through an agreement
created by the parties. Mediation is sometimes referred to
as “super negotiation.”
Q: WHAT HAPPENS AT MEDIATION?
A mediation session involves a discussion of the dispute by
the parties in an informal setting. Typically the session
is attended by the mediator, the parties and their counsel,
if they have retained any. The process is informal and confidential.
No record is made of the proceedings and statements made in
the mediation are not admissible in any court proceedings.
Q: WILL I HAVE TO GIVE UP MY CASE IF I GO
TO MEDIATION?
Mediation is a voluntary, non-binding process. The mediator
has no authority to make decisions or force the parties to
accept any terms. The mediator does not give legal advice.
Instead, the mediator’s role is to help the parties
identify obstacles to settlement and develop strategies to
overcome those obstacles. Generally a mediated settlement
resolves the entire dispute between the parties and court
proceedings are not necessary.
Q: WILL I GET TO TELL MY SIDE AT THE MEDIATION?
Mediation provides a safe environment for serious negotiations.
The parties have equal opportunity to educate and influence
their opponents. The mediator assists each party in analyzing
the risks and benefits of their position, and in defining
each party’s interest.
Q: CAN MEDIATION GIVE ME ANYTHING MORE THAN
I COULD GET BY
GOING TO TRIAL?
Unlike trial, in which the parties are in opposition, mediation
focuses on cooperation by all the parties. It can bring an
end to the dispute more quickly and inexpensively than going
to trial, and the outcome can be made confidential. Because
the resolution is created by the parties, rather than a judge
or jury, the settlement can provide for more than just the
payment of money. The agreement will meet the parties’
specific interests. While mediating is hard work, you may
leave feeling that the process has given you positive closure
to the dispute.
Q: DOES MEDIATION WORK ALL THE TIME?
Mediation presents an opportunity for the parties to create
their own resolution. The American Arbitration Association
reports over 85% of all mediations result in settlement.
Q: WHAT IS ARBITRATION?
In arbitration an independent and neutral arbitrator listens
to the evidence of the parties and makes an award. The arbitrator
may be an attorney, or an expert in the subject of the dispute.
Generally the parties have agreed that the award of the arbitrator
will be binding on the parties.
Q: WHAT HAPPENS AT ARBITRATION?
Arbitrations are generally held in a conference room, but
the process is more formal than mediation. The arbitrator
will swear witnesses who will testify in response to questions
by the parties or counsel, if they have retained counsel.
The arbitrator will also review the documents provided by
the parties. The parties may decide to have the hearings recorded
by a court reporter so that a transcript is created. At the
close of the hearing, the arbitrator will review the evidence
and make an award, setting out how the parties are to comply
and the timeframe for compliance. Arbitrations, like mediations,
are not public.
Q: WILL I HAVE TO GIVE UP MY CASE IF I GO
TO ARBITRATION?
Arbitrations in almost all cases take the place of a court
process.
Q: WILL I GET TO TELL MY SIDE IF I GO TO
ARBITRATION?
While the arbitration process is more formal than mediation,
it is less formal than a court proceeding. The parties are
given the opportunity to support their position through testimony
and document, without the technical evidentiary rules that
control court trials.
Q: CAN ARBITRATION GIVE ME ANYTHING MORE
THAN I COULD GET BY GOING TO TRIAL?
Arbitrations are scheduled by the parties and the arbitrator,
and take place on the scheduled date which is generally much
sooner than a matter can be heard in a court trial. Because
arbitrations are less formal, they are also less expensive.
The parties may also agree to place certain limits on the
arbitrator’s award which reduces the parties’
risk at the arbitration.
Q: DO I NEED COUNSEL FOR AN ARBITRATION?
Parties are never required to have counsel. However, the arbitrator
cannot give you legal advice about presenting your case, and
the arbitrator is required to follow the law in making the
award. Because the arbitrator will be making a binding award,
many parties feel counsel will be better able to present their
position.
For more information, rates, or to initiate a mediation or
arbitration with Ms. Connors, please go to the Contact
page.
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