Creative Dispute Resolution
The Nellor Law Office offers services as a neutral in creative dispute resolution processes such as mediation, arbitration and their derivatives.
There are many alternatives to lawsuits for resolving disputes. The most commonly known are negotiation, mediation and arbitration. Within these three are literally dozens of variations, such as “early neutral evaluation”, “summary jury trial”, “mini–trial”, “med–arb”, and more.
Mediation is a structured, interactive process between the parties in which a mediator helps the parties resolve their dispute. Mediation is available either before or after litigation has started.
Mediation focuses primarily upon the needs, rights and interests of the parties rather than determining a winner and a loser of a conflict. It offers simplicity, informality, flexibility and economy as advantages over adversarial processes such as lawsuits or arbitration.
The benefits of mediation include:
- Cost. Even though the parties pay for a mediator, the mediation process takes much less time than litigation or arbitration. Taking less time means expending less money on hourly fees and costs. About 95&percent; of ltitgated cases settle anyway, so it only makes sense that they should be settled as early as possible.
- Confidentiality. Court hearings are public. Mediation is private and remains confidential. No one but the parties and the mediator know what happens during a mediation. Mediators are generally barred from testifying in court as to the content or progress of mediation.
- Control. Mediation offers the parties control over both the process and the outcome a dispute. Mediation requires the parties to agree to a result. In a court case or arbitration, the resolution is imposed whether the parties agree or not. Mediation also offers greater opportunities for parties to resovle their dispute in unique ways courts simply can not fashion.
- Creativity. Courts can provide only a limited range of remedies, usually money damages or injunctive relief. Mediation offers the opportunity to create remedies (and processes) that are limited only by the disputant's imaginations.
- Compliance. Agreements reached through mediation are generally more lasting than litigated judgments because the resolution is created by the parties. Mediated agreements also tend to preserve personal and business relationships that can be permenantly damaged by ltigation.
- Fallback. Parties who enter into mediation do not forfeit legal rights or remedies. If mediation does not result in settlement, each side can continue to enforce their rights through litigation.
Arbitration is a more direct substitute for the formal process of litigation than mediation. Think of arbitration as a private court proceeding where one or more arbtrators are paid by the parties to act as judges and rule on the merits of a dispute.
Binding Arbitration is typically conducted in front of one or three arbitrators. The process is much like a trial with rules of evidence, testimony and exhibits. The arbiters make the ultimate decision rather than the parties.
Arbiters' decisions are typically final and appeals are rarely successful even if the decision appears to one party to be completely unreasonable.