4.What is the difference between mediation and arbitration?
Mediation is a private negotiation with the help of a third impartial party (the mediator) who is committed to achieving the settlement of the dispute. In mediation, the parties alone decide how the dispute will be resolved.
Arbitration is, in essence, a private trial, where one or three arbitrators serve in the role of judge and jury. While arbitration is a private process, where its decisions are usually binding, it differs from the civil trial process because there is no appeal from an arbitration award. All of the decision-making authority rests with the arbitrator.
Arbitrators are not necessarily neutral. In arbitrations where the panel is composed of three members, each party appoints an arbitrator. Each arbitrator is beholding to the party that appointed them. The 3rd arbitrator is intended to be neutral. In cases where there is a single arbitrator, there is the hope, but no guarantee, that the arbitrator would be competent and impartial.
5. Why should parties engage in ADR instead of litigation?
Aside from the parties having the advantage of a private mediation forum, as well as the benefit of saving time and money, mediations can be scheduled much sooner than trial or arbitration dates. If time is an important factor, then mediation offers a speedy resolution of conflict. With mediation, it is also possible to create remedies that are innovative and not available in litigation or arbitration. The preservation of business or personal relationships has a better chance of succeeding through mediation than it would by engaging in litigation or arbitration.
6.What types of disputes can be mediated?
Any type of civil dispute can be mediated. I can’t think of any areas of the law that would not lend themselves to mediation. Mediation works best when it is consensual. Some jurisdictions require mediation of all civil cases or certain kinds of civil cases. Business issues that can be mediated encompass Intellectual Property, contract disputes, employment disputes, and product liability. Other types of cases include real estate, personal injury and medical malpractice. Other professional negligence, including legal and accounting malpractice cases, can also be mediated. These are a few areas but there are many more.
7.What advice can you offer to business people who are searching for the right mediator?
I wouldn’t recommend going on the internet! In legal communities, good mediators are well known. Mediation has been popular for several decades and is a reputation-based business. Asking your attorney for recommendations is a good start. The mediator’s subject mater expertise might be important, particularly when dealing with more specialized areas such as patents or technology. Other qualities to look for include the mediator’s communication style and professional demeanor. Actual mediation sessions can vary greatly in length, so selecting a mediator who has the endurance to go the distance is important.
8.When choosing a mediator, should budget be a factor?
Lawsuits are very expensive. The cost of litigation isn’t necessarily proportional to the amount in controversy. Comparatively, the cost of mediation is just a small fraction of the total cost of litigation. In fact, the cost of hiring a mediator can be less than what it costs to hire a single expert witness during litigation.
Moodwire brings you solutions that help you discover what people really think
& feel about your brand.