Resolving Litigation Using Arbitration and Mediation

by Stephen D. Kursman
  

            Did you know that both contemplated and actual litigation can be handled more efficiently through arbitration or mediation?

 

            Arbitration is the private hearing of a disputed matter, before a person or persons appointed by the parties to hear and rule on the dispute.  The arbitrator’s award can be enforced in court if needed.  Arbitrations move forward to conclusion much more quickly than do lawsuits in the courts.

 

            Mediation is a private hearing to resolve a disputed matter before a person appointed by the parties.  The appointed person guides them in joint and separate discussions to arrive at a mutually agreeable settlement, saving all parties the time and expense of continuing to litigate in the courts. 

 

            Arbitration and mediation can be optional or required.  Moving forward through either process is governed by a written agreement or a Judge’s order. 

 

            If the parties agree, or if a Judge orders it, existing litigation can be removed from the Court to arbitration, where the case moves more rapidly than in Court, saving the parties both time and money.  Fee payments are made to an attorney (or panel of attorneys), who hear the case as a private judge and make a binding decision more quickly than would occur in court. 

 

Arbitration can also take place without first going to court, provided a written contract agreeing to arbitrate disputes is already in place. You should always consider including an arbitration clause in all contracts where appropriate.

 

            With the agreement of the parties or by order of a Judge, existing litigation can also be referred to a mediator, who is an attorney who meets with all the parties and their counsel and seeks to settle the litigation. Fees for the mediator's services will be determined in advance and approved by the parties involved.

  

            Arbitration and mediation both are conducted privately and confidentially.  When litigating parties resolve their dispute through mediation, they can agree to keep the terms of their settlement confidential.  When arbitrating parties conclude their dispute, they also can agree to keep matters confidential, unless a party is required to convert the arbitrator’s decision into a judgment to enforce it. 

 

            While a properly drafted contract can avoid or minimize the risk of litigation, avoiding litigation is not always possible. While attorneys of our firm are experienced in representing clients in litigation, we have many years of experience as mediators and arbitrators, and as counsel to a party choosing to use a mediator or arbitrator. 

 

            Please feel free to contact us to discuss the situation in which you may be involved.