Mediation
Mediation is facilitated negotiation in which a neutral party (a mediator) selected by the parties seeks to help them reach a consensual resolution of a dispute on terms they agree on. A mediator helps develop and guide the negotiation process but does not “decide” the outcome. If requested by the parties, the mediator may eventually offer an opinion on the parties’ positions or propose terms for a possible settlement, but the mediator has no authority to impose a settlement. Communications during mediation are confidential and generally inadmissible in court.
Planned Early Dispute Resolution
Planned early dispute resolution is a key proactive process for resolving disputes that is quickly gaining momentum. Business managers know that resolving disputes quickly, either before a lawsuit or arbitration is filed or soon thereafter, reduces the costs of resolving the dispute and may help preserve valuable business relationships. Yet too often parties and their attorneys do not hire mediators until late in the litigation process, after spending months or years and untold dollars in pre-trial discovery and motions.
Planned early dispute resolution is a flexible process in which the parties retain a mediator early in a dispute to actively lay the groundwork and create conditions for a successful early mediation soon after the dispute arises. Depending on the circumstances, the mediator can be hired before or after a lawsuit or arbitration is filed, but the mediator should be hired early enough to be able to help the parties and their attorneys collaboratively develop a dispute resolution process tailored to their needs and circumstances.
Neutral Evaluation
Neutral evaluation is a process in which the parties or their attorneys present a summary of their case to a neutral party for a balanced and unbiased opinion on the likely outcome of a trial or arbitration. To minimize attorneys’ fees and costs, parties can seek an early neutral evaluation soon after a case has been filed in court or arbitration. This evaluation can assist the parties in assessing their case and may propel them toward a settlement.
Arbitration
Arbitration is a form of adjudication that is generally private and less formal than court litigation. The decisionmaker is usually a neutral individual or three-person panel that considers arguments and evidence from the parties and their attorneys, then renders a decision or award.
Arbitration is a creature of contract, meaning that the parties must agree to submit the dispute to arbitration either in a dispute resolution clause in a contract, or after a dispute has arisen in an arbitration agreement. In the absence of an agreement to the contrary, arbitration awards cannot be appealed except on very limited statutory grounds.
I have been on the National Roster of the American Arbitration Association’s (AAA) Construction Industry arbitrators since 2003. I also serve as an arbitrator in private, non-AAA arbitrations.