When your legal dispute is referred for Arbitration or Mediation, it is important to remember that you are still involved in an adversarial legal process. You are entering an unfamiliar arena, where an experienced opponent may have the advantage. If you agree to binding Arbitration, you are committing yourself to the decision. I have more than 20 years of experience practicing before Arbitrators and Mediators, as well as being one myself. As a near-charter member of the New Jersey Supreme Court’s Civil Mediation system, I have mediated other people’s cases well over 100 times, and have become a Program Mentor, to whom new Mediators are required to come, to learn the process.
I have also practiced many dozens of times before other Mediators or Arbitrators, with my own cases, and often prefer that route to litigating in court. This often leads to settlements that save a great deal of time and money.
The difference between Arbitration and Mediation
Mediation starts out as a way of arguing, for example, the interpretation of a clause in a contract, or how much a fair award for damaged property should be. The Mediator works with the parties to resolve issues, and ultimately to forge an agreement. He does not impose a decision, but rather, seeks to help the parties achieve an end to their dispute. His insight into the details that have the parties at odds, whether legal, factual, or psychological, is a valuable resource that can bring a quick, inexpensive end to what could otherwise become a protracted lawsuit. He tries to earn the trust of the parties, and to serve as an intermediary between them.
Many lawyers take this opportunity to have an experienced Mediator tell their clients what he thinks of their issues, as they often trust the Mediator more than they trust their own lawyers. When they ask me to, I can even give them a detailed decision, as though I were a Judge ruling on the particular issues involved. I tell them I’m not a Judge, of course, but that what they are hearing is much like what they will probably hear after presenting their cases in court.
If the parties still can’t agree, the dispute might move to Arbitration, binding or non-binding, where a neutral Arbitrator (or sometimes a panel of 3) will listen to both sides, and render a decision. In non-binding Arbitration, the Arbitrator makes a decision, but the parties can reject the decision, and then move on either to binding Arbitration, or trial. In binding Arbitration, the parties agree to abide by whatever the Arbitrator decides, and there is normally no right of appeal.
Each stage of this process requires preparation, strategy and careful decision-making, weighing the costs and benefits, and anticipating the consequences. An experienced attorney approaches Arbitration as he would a trial, meticulously preparing your case, researching relevant law, and weaving the material facts into a convincing presentation on your behalf.
The benefits of Mediation
Mediation is often preferred over Arbitration because, with no binding decision to be made, it is much faster and cheaper, requiring less paperwork, and less research and preparation. This is not to say it is any less of a careful process. When I mediate other people’s cases, I try to offer them precisely the service they would receive from a Judge, with as much knowledge of the pertinent law as they would have a right to expect in court.
The parties, and their lawyers, can speak to me in confidence, and I only tell the other side what I have heard when I have permission to do so. My advice to the litigants and their attorneys is intended to foster a trusting reaction, so that they can feel confident that whatever compromise is to be made makes sense, and leads to a just result.
The process, however, is far more convenient and informal than going to court, with a date, time and location to which everyone agrees, and a chance to speak more freely than one would in open court. I have been able to bring about many dozens of settlements, sometimes hearing from the attorneys afterward that they didn’t think it could happen in their case.
Similarly, when I am someone’s attorney in a case, and it is going to Mediation before some other Mediator, I always prepare the evidence, and craft an argument, that reflects all my experience practicing in the courts. Normally, we submit written statements to the Mediator in advance. This is an obvious opportunity for the client and myself to get our collective act together, refining our position, and correcting any confusion.
We want to persuade the Mediator – and therefore the adversaries – that our position is pretty much what it will be in court, if we don’t settle. I wish I could say that all the attorneys practicing before me as a Mediator do this too, since it is a chance to save their clients a lot of time, money and anguish. However, most of them do take this opportunity, so I read every word they give me, and when necessary, I research the case law or statute involved myself.
The benefits of Arbitration
Arbitration is designed to reach a fair outcome, with much less expense and time than a trial in court would require. In some cases, Arbitration is your only possible forum, because it was specified in a contract or a statute. When it is voluntary, Arbitration helps many people who might otherwise be shut out of the justice system by high costs. However, Arbitration is still an adversarial process, with each side presenting their case, and rebutting their opponent’s case. This is especially true if your opponent is a corporation with a mandatory arbitration clause in its contracts, and a staff of lawyers on retainer, who specialize in denying claims like yours. I have the professionalism and experience it takes to match a strong opponent.
The advantages of hiring a lawyer to protect your rights
If you wouldn’t represent yourself in court, you should be no more inclined to try it in Arbitration, which is privately funded by those who use it. The American Arbitration Association, which is the largest such entity in the business, has rules designed to root out overt favoritism, but many corporations who engage in Arbitration know the system all too well. We know the system too, and endeavor to obtain an outcome based upon the merits of your case, not on who knows whom. Really, even Mediation is too important for most people to navigate by themselves.
Contact an experienced New Jersey arbitration and mediation firm
If your dispute has been, or should be, referred for Arbitration or Mediation, contact The Law Firm of William H. Michelson to discuss our assisting you. We do it either as the attorney for a party, or as the Arbitrator or Mediator. Call (908) 889-5200 or contact us online today.