Honoré Daumier, “Une Discussion littéraire a la deuxième Galerie”,1864, Lithograph, Alisa Mellon Bruce Fund, Accession Number: 1980.3.7 Courtesy National Gallery of Art, Washington, Source
Disputes are often expensive and unpredictable. They also consume time and energy that an individual or entity can never recover. Alternative dispute resolution – whether by mediation or arbitration – provides parties with the opportunity to conserve resources and exert more control over their destiny.
Esquibel Communications Company provides both mediation and arbitration services. These are alternatives to having a dispute decided by a judge or a jury. Our services are offered at hourly and daily rates.
What is a Mediation?
A mediation is a voluntary, confidential process in which a neutral third party, the mediator, assists the parties involved in a dispute in deciding whether, and if so, on what terms, they wish to resolve their dispute. The mediator is neither acting as an attorney nor judge.
What to expect on the day of the Mediation?
On the mediation day, the mediator will set forth the ground rules and may begin with a meeting of all the participants that includes opening statements by the attorneys for the parties. After the initial session, the parties will separate and the mediator will go back and forth between them, communicating offers and other information. This continues until the parties reach an agreement to resolve the dispute, or the mediator or one or all of the parties believes that it is no longer productive to continue.
If the parties do reach an agreement, the mediator will encourage the participants to put their understanding in writing before the conclusion of the mediation. Of course, the decision to settle any dispute rests solely with the parties, in consultation with their own counsel.
How to have a productive Mediation?
To be effective, mediations require a lot of preparation and active participation from the parties. The parties and their counsel must be completely familiar with the facts and status of their dispute, especially if it is already the subject of litigation. Moreover, the parties should have considered the value of what is at stake in their dispute and what they would, and would not, be willing to compromise to resolve it. They should also be aware of the investment (in time and money) that will be required of them if the dispute continues.
In addition, the parties should confer with their counsel and prepare a strategy for the mediation day. This strategy will probably shift throughout the day, but it is useful to at least have a plan going in.
Beyond that, the parties should come to the mediation well-rested and be prepared for a long day, one that might extend into the evening. Consequently, if you must travel to a mediation, we recommend that you get in early enough the day before to get a good night’s rest and do not schedule your return travel until the day after the mediation.
What is an Arbitration?
An arbitration, unlike a case filed in the public court system, is a private mechanism to have your dispute decided. Usually, it is less formal, less expensive and less protracted than a public piece of litigation. Also, arbitrations typically have less discovery and motions than public court litigation and may have more relaxed procedural and evidentiary rules.
Instead of having a judge or a jury, the parties have one or more arbitrators decide their dispute. The arbitration is governed by certain rules established by arbitration organizations.
How do parties end up in an Arbitration?
Parties must agree to submit to an arbitration. This is generally done by a written contract. Often the agreement to arbitrate is made at the beginning of a business relationship before there is any dispute.
How is a dispute decided in an Arbitration?
A dispute that goes to arbitration is ultimately decided after a final hearing, which is somewhat similar to a trial. While there is no jury, witnesses testify before one or more arbitrators and documents are introduced into evidence. Depending on the nature and size of the dispute, a final arbitration hearing can last anywhere from a day to several weeks. Thereafter, the arbitrator(s) will issue a ruling deciding the outcome of the dispute.