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Understanding The Difference Between Mediation, Arbitration and Trial

By: Mark W. Eisenberg

Many who confront the legal system for the first time, voluntarily or
involuntarily, are faced with having to decide the forum in which their
dispute will be resolved. In some instances, the forum in which a
dispute will be resolved has been pre-selected by the parties however,
more often than not, litigants will make their forum selection only
after a dispute has actually arisen. It is therefore important to have
an understanding of the difference between mediation, arbitration and
trial and the benefits and drawbacks of each. Often times, the forum
selected will dictate how quickly and effectively the dispute is
resolved.

Mediation is a voluntary process wherein two or more parties to a dispute
try to resolve their differences with the assistance of a neutral, disinterested
third party such as an attorney or retired judge. In most instances, the cost
of the mediator is shared equally however, this is not always the case, especially
where one party has an interest in seeing the matter resolve and offers to pay for
the mediation in order to entice the other party to attend and partake. These days,
there are numerous private mediation centers including, but not limited to, at least
in the Southern California area, AAA, JAMS, Judicate West, and IVAMS. The cost
of retaining a mediator to assist in resolving your dispute will vary depending
on such factors as the experience level of the mediator, how busy he or she
may be, the nature of your dispute, the complexity of the issues presented, and
the number of involved parties. Most private mediation centers bill for their
mediator's time on an hourly basis however, others bill a flat fee for a half or
full day.

Mediation is not, like arbitration or trial, adversarial in nature. As
such, parties to a dispute can mediate their differences without
counsel. Anything said during mediation is inadmissible in court. Thus,
it is not uncommon to see parties who partake in a mediation sitting
together in a conference room and, with the assistance of the mediator,
working toward identifying the contested issues and then brain storming
to resolve them. Mediation is a give and take process where there is no
declared winner and no declared loser. For mediation to be successful,
each side must give up something. Mediation is non-binding unless the
parties agree to be bound by whatever result is achieved. Mediation is
favored and recommended in cases involving neighborly disputes, family
disputes, or where parties to a lawsuit involving a claim for monetary
damages believe that with the intervention of a neutral third party, a
settlement can be achieved. Mediation is often the easiest and most
cost effective way to resolve disputes. The major drawback to mediation
is that if no resolution is achieved, the other side will, by virtue of
your disclosures in mediation, have a better feel for what theories or
claims (and strengths and weaknesses thereof) you might proffer in
litigation.

Arbitration differs little from a bench trial (a trial in which the judge serves
as trier of fact as opposed to a jury fulfilling that role). Arbitration
may be binding or non-binding. Binding arbitration is usually by
agreement of the parties with each expressing, in a writing, a
willingness and commitment to be bound by whatever decision the
arbitrator may reach. Non-binding arbitration affords the losing party
the opportunity to seek a trial de novo (a trial on the merits without
regard to the arbitrator's findings) however, there are often penalties
imposed on the party requesting the trial de novo if he or she does not
achieve a better result in trial than achieved in arbitration. Private
organizations like AAA, JAMS, Judicate West, and IVAMS similarly offer
arbitration services. The cost is similarly based on an hourly rate or
half or full-day basis.

In advance of arbitration, with all sides usually represented by
counsel because arbitration is an adversarial proceeding, the
arbitrator will be provided briefs detailing the positions, arguments
and demands of each side. The rules of evidence in arbitration
proceedings are quite liberal. As such, documents and other writings
that might be excluded from evidence in a trial will be received and
considered in arbitration. Arbitration will proceed in whatever fashion
the parties desire. This may mean evidence is introduced through the
admission of exhibits and by way of live or recorded testimony or
simply by way of offer of proof (usually an attorney explaining what
the evidence is). The proceeding is much more formal that a mediation
and, as above, is adversarial in nature. Once all the evidence is
received, the arbitrator will usually take the matter under submission
and render an opinion and/or issue an award shortly thereafter. This
opinion or award is final and may only, under very limited
circumstances, be challenged or appealed.

Arbitration proceedings are usually considerably shorter than a trial
and will often be less expensive though that is not always the case.
The major drawback to arbitration is that you have trusted the outcome
of your case to a single trier of fact giving up your right to a jury.
This may be fine in some cases however, where passion and prejudice may
play a role in how the case is decided, it may be advantageous to you,
depending on which side of the case you are on, to try the case to a
jury of twelve.

Trial is what we most frequently see on TV. It is the subject of
virtually every hit crime drama of our time from "LA Law" to "Boston
Legal" to "Law & Order". In the absence of a plea agreement, trial
is where virtually all criminal cases are adjudicated. In the civil
arena, trials are less frequent. In fact, most, upward of 90%-95% of
all litigated civil disputes settle in advance of trial. Trial is risky
as there is no way to tell what a jury (should you chose to proceed by
way of jury trial) will do with a case. Simple things such as demeanor,
appearance, accent, etc. can have a dramatic effect on how a jury views
a case. If there is anything certain about a jury trial, it is the
uncertainty of the outcome. For that reason, at EISENBERG LAW GROUP we
work hard to resolve disputes before trial. This is not to suggest that
we at EISENBERG LAW GROUP avoid or shy away from trial. Quite the
opposite! Messrs. Day and Eisenberg have over 30-years combined trial
experience and a fabulously successful track record for favorable
outcomes. Trials however, are expensive and carry with them not only
the uncertainly referenced, but the risk of appeal which, at present,
can tie a matter up for 2 ˝ years. In addition, trials can be long and
drawn out. Many judges only hold trial 3-days a week which means a
5-day trial with jury selection and deliberation can last 2-weeks or
more. For these reasons, we at EISENBERG LAW GROUP consider use of all
available forums for resolving your dispute placing your interests
above all else.

Article Source: http://ezine-articles-planet.com

Author Bio:
Hospital Negligence, Nursing Home Negligence, Personal Injury, Spinal Cord Injuries, Trip/Slip & Fall, Workplace Injuries.

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