Category Archives: Business

Alternative Dispute Resolution Options

gleichgewichtMEDIATION: Parties mired in a dispute may voluntarily decide, or be court ordered, to seek a settlement at mediation. In either situation, the parties select a neutral and impartial mediator who will schedule a conference to take place at a mutually convenient time and location. The parties have the right to be accompanied by legal counsel. After appearance at the mediation conference, a party is free to withdraw from this voluntary process at any time for any reason.

The role of the mediator is to facilitate discussion, help clarify issues, encourage listening, seek to reduce roadblocks, and assist in exploring possible solutions. Mediation communications are privileged and confidential as provided by law.

It is the parties alone who determine the outcome of mediation, its essence being self-determination. The mediator cannot act as a judge, provide legal advice or make or compel any decision for the parties. Should the parties voluntarily reach an agreement, they craft its terms. Once an agreement is reduced to writing, it  is  not confidential, and it is enforceable as a contract.

ARBITRATION:  This process takes place when the parties have agreed to submit their dispute to a neutral for a decision (the neutral being an Arbitrator or panel of Arbitrators). It is a simplified version of a trial with limited rights of discovery and less formal rules of evidence. It is a private proceeding without any judicial intervention, and the parties can be represented by legal counsel.

The Arbitrator conducts a hearing; listens to testimony and cross examination of parties and witnesses; considers the evidence submitted; deliberates; and renders a written decision. That written decision, which can consist of anything from a one-sentence statement to a lengthy opinion, is not a matter of public record. By prior agreement , an arbitrated decision may be legally binding, not legally binding, and/or the amount of an award may be limited.

CONSULTING: A consultant may be engaged by a party as an independent contractor to perform a specific task for a limited period of time for a stated compensation. The specified task may be to implement any kind of objective. It may be development of a bargaining strategy to avoid litigation.

Normally, the consultant does not guarantee a positive outcome. The consulting agreement may be cancelled by either party upon timely notice. The party engaging the consultant has the right to be represented by legal counsel

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