Arbitration – May Be the Best Option
Arbitration means decision-making. Mediation means discussions, which may lead to an agreed upon resolution. There is also a combination of mediation/arbitration, which means that the first efforts will be in the form of mediation discussions to see if an agreement can be reached, and if no agreement can be reached, then the process of some form of a hearing will take place. This would include evidence being presented, and ultimately a decision being made. Thus, in mediation/arbitration, and in direct arbitration, there is a guaranteed resolution, in a timely fashion, without court.
Mediation is a much looser process. There can be discussions between the mediator and the parties, individually and jointly. The individual discussions are with one party only, and are confidential, that is not shared with the other side. If it looks like a resolution is being formulated, the lawyer/mediator can draft an agreement, make it available to each party, who then either obtains independent legal advice and gets advice as to whether they should reject the agreement, or parts of it, or whether they should sign it. A party could choose to accept the proposal being put forward as resolution, without engaging a lawyer. This is their option.
Parties in a dispute can go directly to arbitration to resolve all issues, or some limited issues. If it is “direct arbitration” the lawyer/arbitrator works with the parties, and their counsel (if one or either side has counsel) to determine what is needed in the form of a hearing. A hearing in arbitration does not have to be like a court hearing, with full evidence and witnesses, but can be a reduced process, both in terms of cost and time.
At the end of the arbitration process, each party makes submissions as to the result that they are seeking. The lawyer/arbitrator determines what the facts are, applies the law, comes to conclusions about the issues, and gives reasons. The Arbitrator’s Ruling can be voluntarily applied by the parties, or one party could choose to have the ruling turned into a court order to be enforced.
The parties engage the lawyer/mediator/arbitrator to personally attempt to work with the parties to the mediation process to see if an agreed on resolution can be reached. If not, which means that if the parties cannot reach a signed agreement, the mediator/arbitrator then takes on the “arbitrator” role, working with the parties to decide about the nature of the hearing, and then following the hearing, makes a decision, which brings finality to the areas of dispute. The arbitrator can also award costs payable from one side to the other.
Appeal Process of Arbitration
Although appeals are possible to an arbitration ruling, especially in the area of law, appeals are quite rare. Further, statistically, most appeals to a court about an arbitrator’s ruling are dismissed. So long as the arbitrator followed all of the requirements in the Arbitration Act, and was fair and balanced to the parties, the arbitrator’s ruling will prevail.
Time to Complete Mediation or Mediation/Arbitration
Mediation would be the fastest method of resolution. It might take a short as 30 days, or perhaps 60 days. The cost, depending on the number of issues, could be as low as perhaps $3,000 for the lawyer/mediator, but probably bit more. However, the usual practice is that this cost is shared between the parties.
Mediation/arbitration is quite often resolved in the mediation stage, so it could be in the same range, with respect to time requirements and the same cost, or a little more. It should be noted that most lawyers/mediators working this field predict that when mediation/arbitration is chosen, that probably in more than 80% of the cases, the matter is resolved in the mediation stage, perhaps even as high as 85% to 95%. Resolved means that the case has been brought to conclusion through discussions, and without a hearing, and on terms that the parties have accepted.
Arbitration, if it is on a specific issue, could be resolved as well as in 30 days. However, because there are numerous additional steps the cost would probably be approximately twice as much as the cost of the mediation process. In some ways, that is one of the incentives for the parties to resolve the case at the mediation stage.
Other Advantages to Mediation
Although one might tend to think that when they go to court, and the matter is adjudicated in the court system, they will have a judge that “really knows the law” that is not necessarily the case. Many judges are appointed from the ranks of the lawyers, never having practiced family law, and never having had an interest in family law. However, they are still assigned to family law cases as most judges are assigned cases in many areas of law.
By choosing mediation or arbitration, the parties can be assured, and appreciate, that the person that they have selected is skilled and experienced with cases in family law, and cases like their case.
There are also specific skills in the mediation field. By choosing a Certified Mediator, the parties can be assured that the person that they have selected has skills and experience to get the job done, effectively and efficiently.
A lawyer/mediator can draft the proposed final resolution, and bring the matters to a complete end if the parties so choose, with perhaps neither side hiring a lawyer to go through the process with them. A party could engage lawyer at any stage if they wish to receive legal advice as to what they “should do.” The mediator is not acting as an individual lawyer to either side, but a mediator is looking at all of the options, and explaining to the parties when they “could do.”
The mediator can also explain the concept of the court process, and give commentary, about what is the alternative, if the case goes to court rather than the parties reaching their own agreement. Mediation and arbitration process is not a public process, but courts are public and all information exchanged in the court process is available to the public.
Final Comments about Mediation and Arbitration
Mediation, arbitration, alternative dispute resolution are processes that every lawyer must consider, according to the laws that direct lawyers in this area and the court rules. The word “alternative” means other than a court. However, the latest philosophy is that the court process is the process of “last resort,” whereas mediation is to be considered a preferable option.
There is no charge for the initial consultation or discussion when you contact Family Mediation Works. The contact information is set out below: