June 2018

June 2018
THE VALLEY BUSINESS JOURNAL
www.TheValleyBusinessJournal.com
7
Was that MEDIATION, ARBITRATION or VEGETATION?
by Morton J. Grabel, Esq.
Alternative Dispute Resolution [ADR]
- There are alternatives for settling legal
disputes other than litigation including
arbitration, mediation and neutral evaluations.
ADR alternatives are usually
cheaper and more quickly resolved than
litigation. Parties to lawsuits become
increasingly anxious in resolving their
legal disputes as the disputes drag on and
become more expensive. This has lead to
other methods to resolve legal disputes;
collectively known as Alternative Dispute
Resolution (ADR). Usually ADR is
initiated after litigation has commenced
because the court has to have jurisdiction
[authority] over the parties and have
jurisdiction [authority] over the subject
matter of the law suit such as family law
matters, breach of contract and personal
injury claims, etc.
Mediation: is the fastest growing ADR
method. Unlike litigation, mediation provides
a forum in which parties can resolve
their disputes with the help of a skilled
neutral third party. Mediation depends
upon the commitment of the parties to
want to resolve their differences. Clearly,
if one party is committed to resolving
differences and the other party wants
to litigate; mediation will not succeed.
The mediator, never imposes a decision
upon the parties. The mediator’s job is to
keep the parties talking and to help move
them through the more difficult points of
contention. A mediator typically takes the
parties through five stages:
1. First Stage: the mediator gets the parties
to agree on procedural matters,
such as by stating they are participating
in the mediation voluntarily, setting the
time and place for future sessions, and
signing a confidentiality agreement.
One valuable characteristic of this
stage is the parties, who often have
been unable to agree on anything, begin
a pattern of saying yes.
2. Second Stage: the parties exchange
initial positions, not by way of lecturing
each other or the mediator but in a
face-to-face exchange with each other;
if it is possible and the parties are not
completely full of contempt for each
other. If they absolutely despise each
other then go to stage three. Often in
stage two, this is the first time each
party hears the other’s complete and
uninterrupted version. The parties may
begin to see the story has two sides.
3. Third Stage: if the parties have agreed
to what is called a caucusing procedure,
the mediator meets with each side
separately in a series of confidential,
private meetings and begins exploring
settlement alternatives, and assist in
some “reality testing” of their initial
demands. This process, sometimes
called “shuttle diplomacy”, often uncovers
areas of flexibility the parties
could not see before.
4. Fourth Stage: when the gap between
the parties begins to close, the mediator
may carry offers and counteroffers
back and forth.
Finally, when the parties agree upon
the broad terms of a settlement, they formally
reaffirm their understanding of the
settlement, complete the final details, and
sign a settlement agreement. It is essential
to note mediation permits the parties to
retain control of the process at all times
and strike their own bargain.
Another advantage is when the parties
reach agreement in mediation, the
dispute is over—they face no appeals, no
delays, no continuing expenses, nor the
unknown risks such as in a trial.
II. Binding Arbitration: very closely
resembles traditional litigation because
a neutral third party or panel hears the
litigating parties’ arguments and imposes
a final, binding decision that is enforceable
by the courts; usually however the
proceedings are typically less formal than
in a court of law. Another difference, unlike
court decisions; an arbitration usually
offers no appeal process. Thus, when an
arbitration decision is issued, the case is
ended.
III. Early Neutral Evaluation:
An early neutral evaluation (ENE)
is used when either party to a dispute
seek the advice of an experienced individual
- usually an attorney, concerning
the strength of their case. An objective
evaluation by a knowledgeable outsider
can move parties away from unrealistic
expectations and also provide more
insight into their cases’ strengths and
weaknesses. Of course, the success of
this technique depends upon the parties’
faith in the fairness and objectivity of the
neutral third-party.
Please note by reading the information
herein; no attorney-client relationship has
been created. Moreover, the information
provided herein is not to be relied upon as
legal advice for your specific legal needs.
Should you have legal questions feel free
to contact The Law Offices Morton J.
Grabel in Temecula at (951) 695- 7700.
Mort, originally from Philadelphia PA,
attended an ABA Law School, has an
MBA, a Real Estate Broker’s License, a
CA Nursing Home Administrator’s License
and is a member in good standing
of various local Chambers of Commerce.
LEGAL
by
Morton by J. Grabel, Esq.
Steve Fillingim