SC | Alternative Dispute Resolution | Mediation | Arbitration

Alternative Dispute Resolution

Although ADR has been around for decades it has been growing in popularity much more rapidly over the past ten years. There are a few reasons for this:

First, litigation is very expensive and time consuming and there is no guarantee that the outcome will be in your favor despite the strength of your case. Remember, both parties believe they are right. Although ADR can sometimes be costly, it still remains infinitely cheaper than the costs of litigation (court fees, attorney fees, expert witness expenses, litigation support services, court reporters, private investigators, etc.). Additionally, the final outcome can frequently come as quickly as you and the opposing party agree to meet or speak.

Although every American is technically entitled to his or her day in court, there has been a big push for many years by federal, state, and local courts to have litigants decide their cases outside of the courts. Although this is likely to happen anyway (most people do not realize that the vast majority of cases settle "on the courthouse steps"), the courts have been growing increasingly congested. Judges have a responsibility to keep their dockets in motion, and by having parties settle (mediate) or arbitrate their cases outside of their courtrooms, they are better able to push through the congestion. This is good for everyone, as those who truly need rapid access to the courts will not have to wait as long, and this keeps taxpayer expenses down, as well.

Below are descriptions of the three main types of ADR: mediation, negotiation, and arbitration. If you would like to discuss your concerns in more detail after reading this, then please contact us immediately, and ask for Jason.

Mediation

Mediation is one or more sessions (in person, by telephone, or by email) where the parties will work together discussing their concerns in an effort to reach an agreement that is fair to both parties. There are different types of mediation, but we always recommend what is referred to as facilitative mediation, which offers the most flexibility to the parties, and many believe that it is the most non-confrontational and most-effective. The job of the mediator is to remain neutral and simply to help facilitate the process in a productive and peaceful manner. In other types of mediation, a mediator may actually attempt to steer the parties in a particular direction. This is arguably less "healthy" because it is important for the parties to reach the agreement on their own, even if the mediator feels it should be something different in the end. After all, for a lifetime afterward, it is the parties who will have to be happy with their decisions, and not the mediator.

Because mediation is appropriate for such a vast number of situations, there are numerous areas of mediation ranging from general civil, to family mediation, but the skills required of the mediator are similar. However, some jurisdictions require mediators, whose work will involve children or child custody, to participate in specialized training in this area. Mediators typically charge an hourly fee, which is evenly shared by the parties. Nationwide, fees may run anywhere from $100/hour to $10,000 per day, with the average fee running $200-400/hour. Sessions can run between an hour and many days (not necessarily consecutively) depending on the parties' preferences and the complexity of the issue.

The rules of evidence and other procedural laws do not apply during mediation, and everything that is discussed in sessions must remain confidential. Nothing discussed during sessions is admissible in court (should an agreement not be reached) unless it was inevitably discoverable independently. The parties may also choose to make their agreement fully binding by agreeing beforehand, and signing a binding agreement afterward.

Jason Schlesinger is a highly trained and experienced mediator who may be able to help you with your case. Call and ask for assistance if you would like more information.

Negotiation

Negotiation is useful in almost any business situation and many personal ones, and can most simply be defined as "bargaining". This is the only type of mediation of the three described on this page where the ADR professional operates in a non-neutral capacity. Negotiators will not help both parties, but rather, will represent one party's interest while attempting to bargain their position against the position of the opposing party. Numerous strategies are employed during negotiations, and it can be very important to have someone assist you who is well trained in these skills.

Negotiation allows the parties both informality and flexibility, as they may choose to meeting either in person, or negotiate via any other means, including certified mail. There are no formal rules to negotiations, expect as are determined by the parties at the outset. Negotiation may cost similarly to mediation, but may also run higher because each party must retain his or her own negotiator and the expense will not be shared. However, the complexity of the issue will play a large role in determining the cost. The parties may also choose to make their final agreement fully binding, as in mediation.

Jason Schlesinger is a very skilled negotiator. If you would like him to represent your interest or simply discuss a strategy with you, then call today to schedule an appointment.

Arbitration

Arbitration operates similarly to that of a court proceeding in the sense that all parties present their cases in chief, have an opportunity to rebut, and present any evidence and witness testimony that they choose. Although the rules of evidence frequently do not apply (the arbitrator sets the rules), the arbitrator will often hear the case closely to the way the rules would have him do as a formal judge. In fact, many arbitrators are attorneys and retired judges—professionals who are accustomed to operating within formal and strict litigation rules.

Arbitrators should have a good degree of familiarity with the subject matter of your case in order to render a fair and accurate decision. This may mean that they worked for a period of time in that area, that they practiced that area of law, or a combination of each. Ideally, your arbitrator should be fairly familiar with the applicable laws, although your attorney (if you choose to retain one, as we recommend) should also submit briefs in advance outlining any laws that weigh for and against your position.

Your arbitrator will inform you as to how long you will have to wait before receiving your decision. However, this process is much more expeditious than a court proceeding, especially once you factor in the repeated rescheduling, short court day, and number of cases to be heard before yours. Arbitrators charge a wide range of fees, which are typically paid by the party ruled against as per a pre-existing contract clause or arbitration agreement.

Jason Schlesinger has arbitration experience in a variety of areas. If you would like to have him arbitrate a case for you, or simply consult with him regarding your options, then contact us today. Whether or not Jason feels your case and he make a good match, you will be glad that you spoke.