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Mediate.com

Mediate or Arbitrate Instead of Litigate

by Kathleen Johnson
August 2009 Kathleen Johnson
I have found that a large percentage of the individuals who come to me for mediation or arbitration, have some type of relationship between them, that they wish to continue. (However, this is in no way a prerequisite to mediation or arbitration) This relationship could be a contract, employment, business, neighbor, roommate, family, marriage, etc. Generally, the fastest way to end a relationship is to litigate. Even as a lawyer when I lived in New Jersey, I would strongly recommend that my clients who decided to litigate choose the words they used in their Complaint very carefully. The reality was that if they had any intention (and some did) of coaxing the other party to settle by putting the matter into litigation, language they might use in their complaint actually intensified the situation rather than helping to settle the matter.

Courts are overloaded and litigation is generally slow and costly. However, there are times that one party, for one reason or another, feels that the best way to resolve the conflict is to litigate. There is never a definite as to how the matter will resolve when starting litigation, and even when the one party may feel that they are completely in the right and will definitely succeed, the decision of the court can be totally different from that which that party expects. I can not count how many times I went to Court thinking that my client was going to win because they really were in the right, and we lost. Then there were those times that I felt, “well all I can do is represent my client to the best of my ability”, but the fact was that their case was weak to poor…and we won.

In mediation, the parties decide upon a mutually agreeable resolution to the conflict. It may not be what either party was hoping for, but it will be something that the parties can all live with. Sometimes the parties might decide to arbitrate immediately or they may have been unsuccessfully mediating and could not come to a resolution of the matter themselves even with the assistance of the mediator and consequently now desire to arbitrate. However, there are two very interesting combinations of mediation and arbitration that anyone considering Alternative Dispute Resolution should consider. One is med-arb and the other is arb-med. In med-arb the disputants consent to mediation with the added provision that if mediation does not produce a settlement, then the mediator can act as arbitrator and make a binding decision. In arb-med the neutral conducts an arbitration, renders an award, seals it and then proceeds with the mediation. The award is only revealed upon impasse of the mediation.

Traditional arbitration can be felt to be similar to litigation, however, there are a number of differences. (which tends to make arbitration fairer to the individuals than litigation). Arbitration is more personal and informal than traditional litigation. The parties can agree prior to the arbitration as to general format, what and how evidence can be introduced, how long a session will last, and if the arbitration will be binding or nonbinding. Binding arbitration is when the parties agree that they will abide by the arbitrator’s award or decision. Nonbinding arbitration means that the parties are interested in hearing what the arbitrator’s award will be, however they may or may not abide by same. There are also a number of alternatives to traditional arbitration. High-low arbitration meaning that the parties give the arbitrator a range whereby they will agree that the arbitration is binding, and if the award if higher or lower than this range, they may decide to abide by same. Baseball arbitration encourages the parties to be realistic in their expectation of the resolution of the conflict. All parties provide the arbitrator with a written resolution, and the arbitrator, knowing the substance of the conflict, can pick the more realistic solution.

All forms of Alternative Dispute Resolution or ADR are directed toward reaching a resolution to the conflict or dispute. Organizations such as Mediate.com, the Association for Conflict Resolution (ACR), Divorcenet.com and MediationNow.com, to name a few, are very interested in providing disputants with alternative to impersonal, long, drawn out, and costly (both financially and emotionally) litigation.

Biography


Kathleen Johnson has been mediating and arbitrating for approximately 15 years, and have handled a vast variety and extensive amount of issues and conflicts . She was an attorney with my own law office in New Jersey (1996-2008), where she also handled mediation and arbitration.  Since selling her home in New Jersey and moving to North Carolina in September 2008 she has decided to focus on mediation and arbitration solely.  Kathleen is a certified and senior member of mediate.com.   

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