When applicable, participate in non-binding arbitration or mediation.
ADR, or alternative dispute resolution, generally takes one of two forms: (i) arbitration; or (ii) mediation.
Briefly, the arbitration process is comparable to the litigation process, and an arbitration itself is like a trial — evidence is gathered, presented, and weighed, and witnesses can offer testimony. The arbitrator, taking the place of the judge and jury, evaluates the evidence presented, and makes a decision regarding liability and damages. In the case of binding arbitration, the arbitrator’s decision is final and
difficult to appeal, and most importantly can be filed with the court as a judgment. This Guide will not address the arbitration process.
Unlike arbitration, mediation is just another word for formal settlement talks. It does not involve any decision by an arbitrator as to the facts or law of the case, and it does not result in any decision, ruling, or judgment. Rather, the parties will typically select a mutually agreeable mediator (often a retired judge or experienced attorney) and provide the mediator with confidential briefs outlining the facts and law supporting their cases.
At the mediation, the parties will typically be placed in different rooms, with the mediator floating between the parties and attempting bring each side closer together.
Good mediators are skilled at highlighting the weaknesses of each party’s case and pointing out the risks associated with litigation. In the end, whether the dispute is resolved at mediation is entirely up to the parties and their attorneys.
Sometimes, mediation is required, such as when a contract mandates that the parties mediate a dispute before proceeding with litigation, but most of the time, participation is purely voluntary.
So, while mediation costs money – the parties have to pay the mediator and their respective attorneys – if there’s a reasonable chance that the case might settle, it’s almost always worth pursuing.