Alternative dispute resolution (ADR) refers to a variety of processes that allow parties to resolve disputes without litigation. Disputes over the interpretation or implementation of one or more provisions of a contract or other agreement are often decided through ADR. Arbitration and mediation are the two major forms of ADR. Gilbert Law Group has represented clients in a wide array of issues and disputes in the many different ADR forums.
ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration of the dispute. As burgeoning court dockets increase, the high cost of litigation mounts, and lengthy time delays continue to detrimentally impact litigants, more states, municipalities, and companies have begun implementing ADR programs. Some of these programs are voluntary; others are mandatory.
ADR often saves money and encourages settlement. In ADR processes such as mediation, the parties themselves play a significant role in resolving their own disputes. Many times, this results in creative, longer-lasting solutions, with more satisfaction, and improved relationships going forward.
Arbitration: a neutral official called an “arbitrator” hears arguments, testimony, and examines evidence from each side in an informal setting and then makes a determination. Arbitration is less formal than a trial and the rules of evidence are typically relaxed. In binding arbitration, parties agree to accept the arbitrator’s decision as binding and final, and there is generally no right to appeal. In nonbinding or advisory arbitration, if the parties do not accept the arbitrator’s decision, they may request to subsequently resolve the matter in court. Courts are often asked to review the validity of a provision calling for mandatory arbitration or mediation but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them.
In some instances, an arbitration is presided over and decided by an arbitral panel. To comprise a panel, either both sides agree on the arbitrators, or each side selects one arbitrator and the two arbitrators select the third. Arbitration hearings usually last between a few days to a week, and last either a few hours or full days. The arbitrator then deliberates and issues a written opinion, decision, or arbitration award. Arbitration has a long history of being used in labor and employment matters. Title 9 of the U.S. Code establishes federal law supporting arbitration. It is based on Congress’s plenary power over interstate commerce. The arbitration agreement and award are now enforceable under both state and federal law.
Mediation: a neutral person called a “mediator” assists the parties try to reach a mutually acceptable resolution of the dispute. The key difference between mediation and arbitration is that compliance with a mediator’s recommendation is voluntary. The mediator’s recommendation is not binding – it does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves.
In Gilbert Law Group, Howard Gilbert has served and continues to serve as both a mediator and arbitrator in a variety of forums.
CONTACT Gilbert Law Group today: 631.630.0100.