CHAPTER 10: SELECTED CIVIL CLAIMS - Table of Contents
10.1 - Alternate Dispute Resolution • 10.2 - Bankruptcy • 10.3 - Dissolution of Marriage • 10.4 - Intellectual Property • 10.5 - Personal Injury • 10.6 - Professional Malpractice • 10.7 - Real Estate • 10.8 - Taxation
10.1 ALTERNATIVE DISPUTE RESOLUTION
Alternative dispute resolution (ADR) is an alternative to courthouse resolution of legal disputes. The most popular forms of ADR are arbitration and mediation or settlement conferences. ADR is generally less costly in both time and money.
Mediation is a process in which the parties hire an impartial third party who is trained to help the parties settle their dispute. There are two common mediation styles: facilitative and evaluative. Regardless of the mediator's style, the intent is to help preempt a trial or perhaps the filing of a lawsuit.
A facilitative mediator will help the parties address each other, face to face. The parties can mutually solve their problems with the aid of the mediator who keeps the parties on task and helps to neutralize inflammatory communication. The mediator "facilitates" the discussion. If the mediator deems it appropriate the parties may be separated so that the mediator can "caucus" or talk privately with one party. This style works well when the parties have an on-going relationship that they wish or need to maintain, as with neighbor disputes, parenting time for divorcing couples or business partners.
An evaluative mediation, often known as a settlement conference, allows for the parties to gain the neutral's input on the respective strengths and weaknesses of a legal action or potential lawsuit. The mediator gathers as much information from each party independently as the parties wish to share. The communications with the mediator are held in confidence unless a party allows information to be shared with the opponent. The parties may be separated for part or all of the mediation. The mediator provides confidential feedback to each party to help them resolve the case by providing the "neutral perspective." The mediator will carry information back and forth to the parties including settlement demands and offers and counteroffers to settle.
Arbitration is a litigation process for hearing a lawsuit with witnesses and exhibits. It is often preferred over a courthouse trial because the rules for admitting evidence are more relaxed as compared to the court rules. Sometimes the parties can agree to the rules to apply in an arbitration Usually the arbitrators are lawyers, former judges or individuals with some background in the subject matter. The choice of an arbitrator with some knowledge of the subject matter allows for the parties to submit much evidence through documents and without a live witness to explain the subject matter so that much time is saved as compared to a jury trial. Thus the litigation costs are usually less than what would be spent on a jury trial. Arbitrators decide the case and issue an award. Depending upon the agreement of the parties, arbitration may or may not be binding.
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