Mediation

MEDIATION or ARBITRATION- what is right for you?

The distinctions between mediation and arbitration in the public’s mind are often blurred. Both are forms of Alternative Dispute Resolution (ADR) that are designed to keep disputants out of Court or to remove them from protracted legal wrangling when already in Court. The two methodologies are distinctly different. This article will discuss, in very general terms the differences between the two.

MEDIATION

Mediation involves using an independent third party who helps both sides to come to an agreement. In some instances, there are co-mediators who work as a team to resolve the problem. Mediation is a very flexible process that can be used to settle disputes. It is used in a whole range of situations such as:
• Consumer/small claims disputes
• contract/commercial disputes
• housing disputes
• neighborhood disputes
• family law/ divorce disputes
• personal injury cases (read more about the types of injuries under consideration)

The role of the mediator is to help parties reach a solution to their problem that both parties are happy to accept. The mediator remains neutral throughout the process.

Mediation is voluntary. No one can force you to mediate, although it can be a required step in a larger resolution process. If you don’t like it, you can decline it. If you don’t like the way things are going in mediation, you can simply stand up and walk out. It is particularly effective and an appropriate choice if a party wants to settle a dispute, quickly and confidentially.

It is confidential. What is said by each side is not disclosed to any party outside the mediation hearing. And, each party can disclose confidential facts to the mediator who must maintain that confidentiality. If parties are unable to reach agreement, they can still go to court. Mediation details will not be disclosed or used at a court hearing.

Usually, both parties share the cost of mediation. The cost depends on the value and complexity of the claim, and is the result of an hourly fee charged by the mediator(s).

Mediation can be quicker, less stressful and cheaper than going to arbitration or court. The outcome of mediation can often include elements that are not traditional remedies such as – an apology, an explanation, or something that a court could not order. Once a settlement has been reached a settlement agreement can be drawn up.

The idea of mediation is simple: if two “sides” are both willing to engage in at least some compromise, with the help of a skilled mediator they might be able to find an acceptable common ground for settlement that they could not accomplish without a neutral third party.
While mediations can take any format, by far the most common format is this:
1. The parties are usually asked to sign an agreement with the mediator that says everything said in mediation will be held confidential, and provides for which side(s) will be paying the mediator fees.
2. The mediator usually asks the parties to prepare a confidential mediation statement that outlines their cases (or defenses), their support for their cases, and their goals.
3. Both sides, their attorneys, and the mediator meet together in one room (typically called a “conference”). Both sides are given an opportunity to make a statement in the presence of all parties
4. In many cases, the disputants are separated and each has some time to spend alone with the mediator (typically called a “caucus”), who then engages in a form of shuttle diplomacy, emphasizing to each side the problems with their arguments, the strengths of the other side’s arguments, and the difficulties to be faced if mediation is not successful, and litigation ensues.
5. If the parties achieve resolution, a settlement agreement will be drafted, and signed, before the disputants leave.

There are several advantages to mediation:

* By its very nature, mediation helps both sides understand the other’s viewpoint.
* There can be a significant savings in legal fees for both sides.
* Mediations are confidential.

There are disadvantages to engaging in mediation, but they are few:

* Any time you spend with your attorney, if he/she participates in the mediation, will cost you money.
* You may have to share in the fees of the mediator

ARBITRATION

 
Arbitration is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”); by whose decision (the “award”) they agree to be bound. It is a form of binding dispute resolution, equivalent to litigation in the courts, and entirely distinct from the various forms of non-binding dispute resolution, such as negotiation, mediation, or non-binding determinations by experts. Arbitration is today most commonly used for the resolution of commercial disputes. It is widely used in international commercial transactions.
In arbitration a third party or parties consider both sides in a dispute, and make decisions that resolve the dispute. The arbitrator may be a lawyer, an engineer, accountant, or other expert depending upon the nature and complexity of the claim. The arbitrator is impartial; this means he or she does not take sides. In most cases the arbitrator’s decision is legally binding on both sides, so it is not possible to go to court if you are unhappy with the decision.

Most types of arbitration have the following in common:

• Both parties must be willing to use the process
• It is private
• The decision is made by a third party, not the people involved
• The arbitrator often decides on the basis of written information
• If there is a hearing, it is likely to be less formal than court
• The process is final and legally binding
• There are limited grounds for challenging the decision

Arbitration is used widely for international disputes, disputes between major corporations, employment rights disputes, and consumer disputes. Arbitration is defined, and the rules set out according to laws set forth in the many countries where it is used. Some International organizations have adopted their own processes and procedures.

The typical method for invoking arbitration is the inclusion of language requiring it in a contract between two or more parties. A clause stating that arbitration will be used to resolve any dispute between the parties is included in the contract. This will be agreed at the time the contract is signed, and the clause is intended to prevent expensive and time-consuming disputes ending up in court. If you sign a contract with an arbitration clause, it is usually binding – you can’t change your mind later. And arbitration is also binding – if you don’t like the arbitrator’s decision, you can’t go to court afterwards. In appropriate cases the contracting parties will actually set for the details of the process, the laws to be used, the tribunal, etc.

The parties to the contract can usually choose an arbitrator, providing they can agree on one. If they cannot, they will suggest that some independent body appoint the arbitrator(s) and, even, manage the process.

When arbitration is used in lower value consumer disputes, the arbitrator often makes a decision based on the written evidence which the parties send in, and doesn’t hold a hearing. This is a much quicker, cheaper process. Once the parties have decided to use arbitration and the process has begun, they usually give up their right to seek a resolution of the matter elsewhere, such as in court or tribunal.

After considering the parties’ submissions, the arbitrator issues a final and binding award. The award usually includes reasons for the decision.

The cost of arbitration varies. The fees can be quite high for disputants in complex cases, since there are fees for not only the attorneys, but also the arbitrators, expert witnesses, etc.

The Law Offices of Wolf & Pravato want to remind us that arbitration is intended to be less expensive, less formal, and more flexible than court, so the rules of evidence are not as strict, and parties can usually have a say in how they want the hearing to be conducted. Parties can choose a single arbitrator with relevant experience, or select an arbitral panel of three or five arbitrators. Obviously, the larger the panel, the more expensive the process is going to be, and this model is likely to be used in high value commercial disputes.

The Final Four (mediation style); a Banquet and Bono

The International Academy of Dispute Reasolution’s 10th International Law School Competition concluded yesterday. The rounds happened Friday and Saturday with 34 teams coming to London from 23 schools, 8 countries and 4 continents! After three rounds the tabulation room began to work, while students, coaches and judges enjoyed lunch. There was, naturally, tension amongst the teams as they anxiously awaited word of who made it to the finals. The entire group would be slashed to the top 4 mediator teams and top 4 client/advocacy teams who would enter the final round. INADR’s own Fred Lane atempted to distract the students with his talents as a magician. The audience appreciated his mastery of magic and his humor.

Shortly thereafter, the four of us ( Judge Allan Goldberg, Retired Judge Ben Mackoff, Retired Judge Stephen Walter and myself) who were asked to judge the Finals were asked to leave the room so that we wouild not know which teams were to appear in our rooms.

The Final teams were as difficult to judge as one could imagine. The teams were flawless in all respects. The stress upon the judges, pales compared to that of the participants and their coaches, it was still present. Someone must “win,” but in the end we know they are all winners in the larger picture.

We completed and checked our ballots, turned them in and ran off to our respective hotels to change for the Awards banquet. While no one ( save one) knew the results, the cocktail hour eased tensions. As dinner began, the teams and individuals were duly honored and recognized.

I will not attempt here to completely recount the awards, but only mention memories that struck me from the evening.

— The outstanding success of a team from The Institute of Professional Legal Studies, in Belfast, Northern Ireland in its first year of participation, whose energy and emotion carried the night.

— The superb results in all categories from the Murdoch University School of Law, Perth, Australia.

— The great results turned in by teams from Loyola/Chicago; UC Hastings; Tulane; Norhteastern; Chapman and South Texas Law Schools.

— The great conversations over dinner with the Loras College undergraduate team.

As the awards ceremony concluded, the DJ appeared and the awards ceremony truned into an international collaboration and celebration to the tunes of JayZ; Cee-Lo Green; U-2; and a host of others.

I left as the Irish, Americans, Aussies, Brits and Germans were all dancing and singing along to everone’s international favorite — Bono. This was truly inspirational for me as I and friends and colleagues begin to explore a project that uses music in conflict transformation with young adults in high conflict areas around the world.
It was truly an honor to be part of this group dedicated to fostering an atmosphere of dispute resolution that is commtited to creating peaceful problem-solving discussions in an environment that encourages collaboration and cooperation.

“Music can change the world because it can change people.” – Bono

Official Tournament results can be obtained next week on INADR ‘s website (www.INADR.org) .

Paddington, coffee and the opening of a mediation tournament in London

After an afternoon exploring Paddington, I anxiously awaited meeting Clare Rodway, LLB – (@ClareRodway) the Managing Director of KYSEN PR, which Kysen PR provides tailored PR and marketing expertise to legal, accountancy and other professional services organisations. (www.kysenpr.co.uk) Clare and I had missed each other at #Lex2011Tweetup, which has been the subject of a prior post, so we met for coffee. We had a wonderful chat about our mutual interests as well as the distinctions between law firm PR, marketing and operations in the US v. UK, and the implications of the Legal Services Act in the UK.

From there I found a taxi and was off to the begining of the activities for what really brought me to London.

I walked into a lower level of BPP Law in London a little past 6 to attend the Opening Reception for The International Academly of Dispute Resolution’s 10th Annual International Law School Mediation Tournament. (www.INADR.org) I was pleased to find over a hundred students, faculty, coaches, administration and support staff joining the handful of INADR folks from the Chicago area who came to London for the first time the tournament has been held in London. The buzz in the room was amazing. Our colleagues here had set up the event to create collegiality amongst everyone. While we call it a “tournament” – it really is a collaboration – students from around the world coming together to meet, learn, and share a common interest in helping people manage conflict and solve disputes.

It became clear that with 34 teams here, we would need additiobnal judges, so I put the word out to the London legal/mediation community from the reception via direct emails form the reception and later via twitter. The London community as one would expect responded to the call immediately, contacting colleagues, their chambers and recommending organizations to contact.

Thanks to all who have helped and who continue to do so.

Mediators as early responders – follow up and a discussion of a recent trip to Haiti

 

Some may recall that we wrote a post in February in an effort to open a discussion of the need to have mediators and facilitators on early responder teams who resppond to disasters. A  robust and informative online exchange was  had with many helpful points ov view being exchanged. This was followed by a discussion of several interested mediators in Washington DC in March of this year. All of the comments to the earlier posts and a bibliography of collected references was provided to all participants. Anyone  interested in that compilation can email me directly for a copy.

A couple of hours of pointed discussion in Washington DC in March led to these questions/tasks/points:

  1. There is often a need for conflict management skills after the early responders have left and there is a lull in activity. NGO’s become conflicted internally and conflicts between NGOs and beween NGOs and local officials.
  2. Do we add value/credibility by being trained as relief workers?
  3. How can we build relationships with NGO relief providers ( potential partners)  in advance of a natural disaster?
  4. Should we consider developing a program to train early responders in mediation?
  5. We should perform a survey of all of the natural disaster providers as a starting point.
  6. We should develop an inventory of  the skill sets that would be necessary  for any team sent in.
  7. To avoid the notion that we are early responders we are early responders, we should call ourselves “Mediators In Times of Crisis”  ( MITC)

We have not,  as a group, begun to explore these issues since then.

However, I made a recent assessment  trip to Haiti with Alan Gross ( a NY & PA mediator, trainer and facilitator who has worked all over the world).  We went with the thought in mind that we would assess the presence of conflicts falling within the first listed point above.

My  friend, Erik Kulstad, an ER doctor in Chicago,  had just volunteered for two weeks in Haiti and suggested that things weere pretty chaotic there.  Based upon that there appeared to be a need to take the next step, and the timiong appeared to be appropriate. The early responders had done there work. There was a substantial NGO/volunteer presence that was still working in Haiti, and some apparent conflicts present.

Erik introduced  me to Paul Sebring who operates MMRC-US a brand new  NGO that focuses on logistics in Port-au-Prince  http://mmrc-us.org/ Paul and I had several conversations that led me to conclude that teh time was right to go. I solicited Alan’s help, and he kindly agreed. We first made sure that we were not goiong to be a drain on local resources or get in the way. Paul said that he would introduce us to some folks, and asked us to assist with some conflicts he was exposed to involving other NGOs and local organizations. We brought our own food to insure we would not be a drain. Paul let us stay at the MMRC-US operations center where there was room. We knew we would need water locally, but other than that, we were not going to deprive locals. Paul had a truck to take us where we needed to go. Paul said that he had thinhs to keep us busy when we were not pon appointments.

I  had some travel complications that kept me inMiami overnight, so Alan was a day ahead of me. On arival I was greated at the airport by Alan and the MMRC vehicle. No waiting!  We were on the way to drop a volunteer off at the Kola orphanage.

The 20 children were cared for by a mom and her two daughters. It was essentially 2 12 foot square tents that operated as classrooms by day and sleepiong quarters at night. MMRC-US built the tents and provides food, medicine and has health care workers check in on the kids. We were dropping Craig off who is doing a study on the numerous orphanages that have sprung up in Haiti post earthquale. The kids were all smiles and immediately jumped on us, and stuck to yus like glue. Christina and Little Paul from MMRC were with us, as was Carol. The kids were clearly attached to them. Have a look at this clip:

That clip shows the innocence of the youngest and the hope of those that look after the children.  A tragically different picture is painted by the look of despair in the eyes of those waiting for medical assistance at the clinic:

or searching in the rubble:

The fact is that the rubble is still there. Some have been allowed back into their homes but many are still in tents, fearful of the start of  hurricane season:

So, as conflict practitioners, we met with NGO workers as we helped distribute food and medicine; built tents; and delivered supplies. The relief work was done in conjunction with a  great group — Carol, Maya and  Ericka, and “the guys”  from Haiti. The NGO workers did not perceive any conflicts amongst their teams or between teams.

We, then, began talking to local folks who raised an important issue —

Are the volunteers, NGOs and other organizations who are there to help, in fact taking away the opportunity for Haitians to help themselves, learn a trade or sell a product?

Namely:

— are volunteer doctors who see anyone for free unknowingly affecting the income of local physicians whose offices are empty?

— do the donated pharmaceuticals keep people out of the pharmacy?

— does donated housing materials keep people from buying locally?

and, the list goes on and on and on.

Life in Haiti is primarily a life of hustling on the street:

Given the overwhelming poverty present in the country, these questions are hard to answer.

It appears that, with regard to Haiti in particular, the roles of NGOs need to be re-assessed in light of the countries pre-disaster condition. Attention needs to be paid to not only the immediate impact of the volunteer efforts as well as the long-term impact. I am reminded of the following, Chinese proverb ( by attribution) :

Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime. 

Shouldn’t there be, in Haiti,  some attention paid and some  common ground reached where the billions of dollars raised around the world for the reconstruction of Haiti find its way into the Haitian economy.

There is a tremendous need to train and employ Haitians. The NGOs should set aside , in each endeavor, some money and time to train Haitians so that they can become employable and self-sustaining.

Every medical NGO can train  health care workers.

Every construction company can train carpenters, laborers, electricians and other trades.

Every food provider can employ locals to deliver the aid.

And the list goes on and on.

And the opportunities to contribute to a sustainable Haiti grow and grow.

It seems that we mediators can take the lead in this regard. We can teach Haitians skills to mediate existing disputes and how to peacefully and effectively advocate for a wise and thoughtful use of the existing aid and volunteer efforts that contribute to:

  • the long-term health of its population;
  • the education of its children;
  • the training of its workers;
  • the viability of its economy;
  • the effectiveness of its government; and,
  • the effective participation of its citizens in all of the above.

So with this in mind, we see an opportunity with mediators, conflict managers and trainers to set an example and start a framework for these processes to be put in place.  So we intend to train Haitians in mediation, facilitation, advocacy, dialogue and in training itself.  We are taking steps to start a program to train Haitian lawyers in mediation to work on the  existing 7 – 10 year backlog of cases in the Haitian judicial system. This can eventually include the development of community mediation centers to handle disputes at a local level by people from the community.

We hope to work with existing NGOs to start peer mediation training in the schools, which in many respects need a fresh look at how to get kids into school; how to keep kids in school and how to treat kids while there.

We hope to empower Haitians to be able to advocate for themselves so that from the rubble and chaos, there arises a new Haiti that provides the Haitians with a home; an education; a job; and a country in which they have pride.

Conflict Management Professionals as Early Responders to Disasters – a Call for Comments

Written in collaboration with Amaza “Scottie” Reid, Mediator, Assistant Attorney General, Maryland and Adjunct Professor, University of Baltimore School of Law

As we all viewed the horrific effects of the earthquake in Haiti, thinking back to other “disasters” of recent memory – the Katrina experience as well as the Tsunami – I think we can all agree that these disasters may bring the best out in people and also, at times, the worst. Some of us may have lived through the stress of a loss of a family member; damage to personal property; a missing relative; temporary hunger or thirst; loss of phone service; etc.

But can any one of us really imagine the stress of several of these events occurring at the same time: The fear of imminent loss of life due to a natural disaster that has no known end, but produces shocking immediate consequences acutely perceived by all senses:


The trauma of being trapped:

 

Children lost; orphaned; confused; scared:

As the dust settles, reality settles in:”Where is my child?””Is Daddy coming back?””I have no water””Daddy, I am thirsty””But officer, my baby needs food!””Can you find my Mommy?””Where should I go, my house is gone?””It is dark””I am hungry””I am bleeding””I am trapped””I cannot see””The hospital is gone””There is no food””Can someone help?”That is the question — Can Mediators help or will they get in the way? Are Mediators able to help? Are there needs which are unmet or inadequately met by the First Responders as we know them now? First Responders are not to be taken lightly. They are perhaps some of the most fearless, caring people the world has to offer each other.They work in the worst of situations; and are pushed, pulled and tugged by those they serve. Some are there to pull people from buildings; others to give medical care; others to feed, clothe and shelter. The success of First Responders is a great cause for celebration :

However, for every success there are far too many stories of frustration and heartache. Stress prevails. The conditions are, understandably, too much for the people affected by the disaster. People are desperately trying to continue their lives, with no water, food or sanitation:

They may have spent the day looking for a relative among the departed:


Or been told to stay away:

Or, told, “You must stay, we cannot let you in here”:

So they react poorly:

People fight for food and water to feed a child, a dying parent or friend. They feel that needs can be met only through aggression. And the aggression increases, as each day passes without food, shelter and sleep. Some choose other behaviors:

Would an organized team of highly trained mediators, conflict coaches, communication coaches, group facilitators, peacemakers and other professionals with the expertise to provide these services be able to intervene in a helpful way? Not to save bodies, but to save minds; to
counsel; to calm; to be of service not only to victims, but also to first responders as well. What are some of the services that an Early Responder team of mediators, supplemented by these other professionals, may provide?:


Communication Coaching

Preparing people for the delivery of emergency healthcare  
Explaining triage

How to communicate your needs

Are your expectations reasonable under the circumstance

Understanding your alternatives

Preparing people for the delivery of food/water

Coaching that cooperation speeds delivery

Coaching that order, not chaos, gets results

Teaching cooperation skills

Advocacy Skills Training
How to communicate your needs effectively

How to deal with bureaucracy
A collaborative exchange for more open communication and sharing

Community Trauma Healing
Creating safe and supportive environments
Learning how trauma affects the brain, body, and mind
Learning conflict transformation skills
Supporting peaceful collaboration
Developing rituals – storytelling, play, spiritual practices

Child Trauma Healing
Giving Children a Voice – the needs of children as voiced by the children themselves need to be heard
Sponsoring children’s discussion groups
Creating opportunities for children to play

Can a protocol be developed where these peacemakers, once on the ground may respond to hot spots; are placed at care distribution sites to deal with the high emotions that are prevalent in such situations; to prepare people in advance for a food drop or distribution; to prepare people for an evacuation. In short, to offer meaningful and effective help that complements and supports the work of the First Responders?We welcome your comments.