What is Arbitration?
Arbitration is a form of private, binding adjudication that shares some similarities with the court process while also differing significantly in various aspects. It is a method through which parties engaged in a dispute submit their disagreements to a mutually agreed-upon, knowledgeable, and independent third party—the arbitrator—who makes a binding decision. While certain disputes inherently require resolution through litigation, the majority can be effectively resolved through arbitration, offering significant advantages to the parties.
This method is particularly advantageous for parties who wish to select their adjudicator and prioritize confidentiality. In many instances, arbitration proves to be more cost-effective than traditional court litigation. Arbitrators possess the legal authority, granted by both law and contractual agreement, to render binding decisions on matters submitted to them for arbitration.
It is important to note that an arbitrator is only authorized to adjudicate issues specified within the parties’ Arbitration Agreement. To ensure the enforceability of an Arbitration Award, it is essential for all parties to obtain independent legal advice prior to signing the Arbitration Agreement. Furthermore, Arbitration Awards may be subject to appeal in accordance with the stipulations outlined within the Arbitration Agreement.
A key distinguishing feature of family arbitration is the arbitrator’s obligation to identify and address power imbalances, particularly those arising from domestic violence. The arbitrator must ensure that these imbalances are recognized, assessed, and effectively managed throughout the private adjudication process. Legally, family arbitrators have a responsibility to determine the appropriateness of cases for private arbitration.
What is Mediation-Arbitration?
As the term implies, this process is a hybrid approach in which one individual is appointed as both mediator and arbitrator. The mediator-arbitrator first facilitates a mediation session aimed at resolving the issues at hand. Should the mediation prove unsuccessful, the parties then engage in a separate and distinct arbitration process. The objective of this phase is not to achieve a settlement; rather, it is to afford each party a fair opportunity to present their case to the arbitrator and respond to the opposing party’s arguments during an impartial hearing. Upon conclusion of the hearing, the mediator-arbitrator will issue an Arbitration Award.
In family mediation-arbitration, to ascertain that the case is suitable for this dual process, a screening for power imbalances, including instances of family violence, is conducted. In family mediation-arbitration, it is the responsibility of the professional to perform this screening prior to the signing of the mediation-arbitration agreement, similar to the obligations of a family mediator.
What to expect at Mediation: A Primer
Mediation is generally interest-based, non-evaluative and voluntary.
A neutral third party acts as a facilitator to assist parties to attempt to resolve their dispute by a mutually acceptable agreement.
The mediator is not in a position to make any decision. The mediator simply facilitates dialogue and discussion.
The mediator will, typically, share his or her views of the merits of the case in private with each party so that each party can consider those views in formulating a settlement position.
An effective mediation session involves a suspension of the march-to-rights-based adjudicated result at trial.
Litigants who settle cases at mediation recognize and control the “siren call of justice”. Mediation is not about “winning”. It is about finding an effective and reasonable solution to the dispute without going to Court.
Mediation allows you as a litigant to maintain some control over the outcome of your dispute. Going to Court involves trusting a third party, the Judge, to determine the dispute.
Litigants who settle recognize the costs and delays associated with going to Court. Mediation is, in most cases, cheaper, quicker, more efficient and less intimidating.
Effective mediation involves a commitment to value-based integrative solutions based on the interests of the parties.
It is important that we prepare on your behalf a detailed and comprehensive mediation brief that summarizes your position in the litigation, on a reasonable basis. The opposing party will hopefully do the same.
An effective mediator will challenge you and your position on a very intensive and detailed basis. Keep in mind that he or she will be doing the same thing with the opposing party.
Typically, the mediation session will involve an assessment and understanding of the strengths and weaknesses of both sides of the case including frank discussion about the risks, costs and benefits of trial versus mediation.
We will meet with you prior to mediation and will invite your input on the mediation brief and also tell you generally what our approach will be at mediation.
We will also want to receive your instructions prior to mediation on your settlement position so that we have a good idea of where you would like to see a resolution arrive at if one is reached.
We urge you to keep an open mind in attending a mediation session.