Category Archives: Business

Alternative Dispute Resolution Options

gleichgewichtMEDIATION: Parties mired in a dispute may voluntarily or be court ordered to seek a settlement at a mediation conference. In either event, 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 always have the right to be accompanied by legal counsel. Once a party appears at a mediation conference, he/she is free to withdraw at any time for any reason.

The role of the mediator is to encourage discussion, help clarify issues, listen attentively, seek to reduce roadblocks, and to explore possible solutions. Mediation communications are privileged and confidential as provided by law.

The parties alone determine the outcome, the essence of mediation is based on self-determination. The mediator cannot act as a judge, provide legal advice or impose a  decision upon the parties. Should the parties voluntarily reach an agreement, the parties craft its terms, the agreement is reduced to writing,  and it is enforceable as a contract.

ARBITRATION:  This process takes place when the parties agreed to submit their dispute to a neutral for a decision, i. e.,, an Arbitrator or panel of Arbitrators. Arbitration is a simplified version of a trial with limited rights of discovery, less formal rules of evidence, no judicial intervention, and, of course, the parties may 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 and it 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 including the development of a  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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