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Alternatives to a Lawsuit: Mediation and Arbitration

The courts are closed due to the COVID-19 pandemic. This does not mean we cannot file lawsuits or submit motions and briefs. The judges and staff are working behind closed doors. It does mean that evidentiary hearings and trials are on hold. And, when the courthouses open to the public, there will be a backlog. Criminal cases will foreseeably take priority over most civil cases, resulting in further delay. What are our options to resolve disputes in the meantime? Mediation and arbitration are available, if the parties agree to use these tools.

Mediation is settlement dialog through a neutral mediator. The mediator does not decide the dispute. He or she can only explore options and persuade the parties to enter a settlement agreement. The settlement agreement is a binding contract that can be reduced to a judgment if necessary.

Mediation is confidential. It can be less confrontational than in the courtroom. If successful, it saves time and is less expensive than ongoing litigation.

The mediator will typically separate the parties into different rooms, then the mediator will have individual sessions, alternating between parties, exploring alternatives to settle the case, offering advice about the pros and cons of the relative positions and of the different options for settlement.

You can do this with or without lawyers representing the parties. And, you can agree to mediate with or without a lawsuit pending. Many choose to mediate in order to avoid a lawsuit. If you are already in a lawsuit, the court has mediation resources to offer. But, in the time of COVID-19, the most expeditious route is to hire a mediator. A private mediator will charge a fee, usually hourly, divided among the parties. It is wise to retain a mediator with knowledge of the applicable law.

Arbitration is submission to a private judge who will hear evidence and decide the dispute. The arbitrator should be neutral, with knowledge of the law. He or she will apply the law to decide the case.

Arbitration typically involves pleadings, and discovery (disclosures of facts), but discovery will be on an abbreviated and expedited basis. A good arbitrator will manage proceedings closely to ensure things get done expeditiously. There is typically no jury. The arbitrator presides and the arbitrator decides.

People choose arbitration to save money (as compared to a lawsuit), to save time, to preserve confidentiality, and to obtain finality. Unlike a court ruling, an arbitrator’s decision is relatively unappealable. Depending on the agreement to arbitrate, grounds for appeal are usually limited to whether the arbitrator exceeded the proper scope of arbitration, and/or whether the arbitrator engaged in fraud or other wrongdoing. The arbitrator’s decision can be filed with a court, which can then enter a judgment that is binding, and enforceable via collection proceedings or otherwise.

We have substantial experience in both mediation and arbitration. I have mediated hundreds of cases, whether as mediator or as an advocate for one side or the other at mediation. Similarly, I have served as arbitrator and as an advocate in arbitrations. For more information, call me at (907) 277-6175.

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