Written by attorney Michelle A. Perfili

"I won't see you in Court" ...Mediation and Arbitration (Alternative Dispute Resolution)

Traditionally litigation was considered a necessary evil should parties be unable to resolve their differences out of court. No question that between filing fees, motion fees, attorney's fees, expert fees, jury fees, costs for blow ups, copies and exhibits that litigation is not only a lengthy hitch but an expensive proposition. In a tough economy, the threat "see you in Court" has become much more of a double edged sword.

Alternative dispute resolution or "ADR" has been an option to avoid litigation and frees up the courts, lawyers and more importantly the parties from the traditional resort to court action. Depending on your jurisdiction, the Courts often foster and sometimes authorize at least a partial payment of the costs of ADR. In California, a pilot program, provides that parties can opt for mediation or arbitration with the Courts (hence the taxpayers) picking up some of the tab. But before you agree to mediation or arbitration, it is important to understand the difference between the two.

Mediation is a sort of legal partners counseling. There is not a person (in this case, the mediator) who decides anything. The role of the mediator is to provide, in a safe, informal and confidential forum, the ability of the parties to discuss, negotiate and perhaps reach a resolution to the dispute.

Arbitration by contrast has the arbitrator hearing evidence, making rulings about the conduct of the hearing and eventually reaching a decision. Binding arbitration is a final decision of the matter, not appealable like a traditional lawsuit.

The advantages of mediation and arbitration is that the parties may reach a resolution much sooner than waiting for the eventual trial date. Accordingly, the parties save time and money. For the lawyers, an arbitration which is often called a "mini-trial" boasts the advantage of relaxed evidentiary rules and procedures and a less formal and intimidating forum for the parties.

Parties and counsel should consider the advantages of ADR not only for the good of those involved but in order to free up Courts, reduce taxpayer expense and affect the orderly flow of justice in often overtaxed Courts.

Additional resources provided by the author

For more information, search your local court website and check for information about mediation, arbitration and "court sponsored" programs. There are also private firms, often who have retired judges on staff, to conduct mediation sessions and arbitration.

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