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While
arbitration is a form of alternative dispute resolution, it is more
analogous to litigation than it is to mediation.
Arbitration
is inherently adversarial where rigid results almost always end
with a winner and a loser. Moreover, parties engaged in arbitration
allow
others to decide their fate and do so on “the record”,
and without the benefit of confidentiality. The process can also
be very costly and lengthy.
Mediation
is inherently a win/win process because no one loses. The parties
voluntarily participate in a non-confrontational and confidential
dialogue while always retaining control of both the process and
outcome.
Mediation is simply the best alternative to litigation. It is a
cost effective, informal and relatively quick way to resolve a dispute. While resolution is the first goal of mediation, success or failure
should not be judged on settlement alone. Mediation provides an open
and confidential environment promoting the disclosure of pertinent
information that would only otherwise be obtained through the rigors
and expenses of civil discovery. The parties are able to narrow the
issues which in turn will reduce the costs of any further litigation.
Perhaps most
important, as a neutral third-party, a mediator can help open otherwise
closed lines of communication, break
an impasse, and
encourage the parties to think “out-of-the-box” to identify
creative alternatives, all of which maximize the potential for the
parties to reach a mutually agreeable resolution.
In
traditional mediation the mediator serves primarily to facilitate
discussion between the parties and may, when appropriate, become
more evaluative providing a third party perspective on issues
relating to
fact, law and the risks and benefits of bringing the matter before
a jury. Traditional mediation usually begins with a joint session
where, with everyone involved in the mediation present, each
party presents
its respective case. After the joint session, the mediator will meet
separately with each of the parties in confidential caucuses. These
caucuses provide a safe environment for the parties and their counsel
to candidly discuss with the mediator their view of the case. Ideally,
these caucuses will continue until the parties reach a resolution
that will then be documented in a settlement agreement and
signed by the
parties before leaving the mediation session.
In
some cases, the parties reach an impasse in their negotiations, but
still want to resolve their dispute without further expense
or litigation. There
are several alternatives the parties can explore which can be employed
successfully to break an impasse and resolve a matter.
These
same alternatives employed under the wrong circumstances however
can serve to further complicate negotiations and drive parties
further apart. Accordingly, it is imperative that the mediator
and parties
fully contemplate the potential risks and benefits and only consider
these types of alternatives as a “last ditch effort” to
resolve a matter. Examples include:
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