Volume 1 • Issue 01
Posted by Site Staff on Sunday February 3, 2008
SAVE MONEY!
SAVE TIME!
HAVE A SAY IN YOUR FUTURE!
Escape Litigation gives readers a different format with valuable contents, including but not limited to:
- History
- Definitions
- Applications Development
- Articles
- Publications
- Legislation
- Discussions
Welcome to the development of Alternative Dispute Resolution (ADR) with its modalities (forms): arbitration, mediation, negotiations, conciliation, facilitation, ombudsing and mini-trials presented through definitions, history, articles, applications, legislation, theory and various publications.
ADR, the term and discipline are recent compared to modalities (forms) which are thousands of years old. An example is Exodus, Chapter 32, where Moses “negotiates” directly with the Lord to save the Hebrew Nation from extinction as a result of their worshiping other gods.
The Honorable Marjorie O. Rendell, Judge of the United States, Court of Appeals for the 3rd Circuit , stated in a conference entitled “ADR for Business Solutions” held by the American Arbitration Association in Philadelphia (Dispute Resolution Journal, Feb 2000) that “providing for court avoidance is an enlightened approach”, that, “litigation cannot formulate an agreement or propose a solution. In some ways it may well disregard the real needs of people or entities before it.”
ADR (Alternative Dispute Resolution) Modalities
ARBITRATION: A process involving parties to a dispute agreeing to submit their issues and problems to an arbitrator(s) – a person(s) chosen to decide the dispute.
Arbitration can be controlling and formal. It can involve pleadings and discovery through interrogatories and possibly depositions with the arbitrator(s) permission. This modality can be as arduous as litigation, however it is an excellent TIME and MONEYsaver! It can be binding or not. Binding arbitration is FINAL; non-binding arbitration is not final, allowing the parties to utilize, move forward with litigation or any other ADR modality.
ARBITRATOR: Parties can choose a private arbitrator(s) such as a retired judge, attorney or professional arbitrator. Professional arbitration service companies can be employed. The parties chose their arbitrator(s). Arbitration service companies will assist the parties in choosing the arbitrator(s) through lists and their instructions. The main point here is that parties chose arbitrator(s).
FORMAT: The format of arbitration varies. There are no rules regarding same. Arbitrators may have their own format and style or be guided by the process used by others in their profession.
Formats can utilize the design of formal court proceedings or be as informal as a round table discussion. An arbitrator can proceed like a judge or be as informal as he/she pleases. This writer’s experience is that arbitrators proceed like a judge, keeping the proceedings formal. Opening statements can be given by either party, or not, laying out the information to be presented by them. Witnesses can be presented but are generally not. The arbitrator can accept written positions of the parties with exhibits, and oral arguments or not. These varying formats are generally within the purview of the arbitrator(s).
Rules of evidence generally do not apply, however, abitrators can require basic rules such as hearsay, best evidence, chain of custody and foundational bases. Generally, the rules of relevance and materiality do apply.
COUNSEL (REPRESENTATION): Parties can be represented by counsel (attorneys). It should be kept in mind that attorneys (however qualified or intentioned, add formality to the proceedings); on the other hand they will protect the rights and advocate one’s position. An attorney can advise with regard to the quality of a position, its strengths and weaknesses.
It is not recommended by this staff that arbitration be used in any dispute. One should seriously consider other ADR modalities unless tied into arbitration by contract or agreement. The parties must agree upon the modality used.
COSTS: Parties in non-binding arbitration are free to share the costs of this modality any way they so chose; they may split costs or work out whatever arrangement that suits them. Generally private arbitrator’s charge by the hour, but may charge on the complexity of the case also. Arbitration Services Companies usually charge by the case, its’ complexity, necessary expertise and the time required to complete the matter. In binding arbitration the arbitrator(s) generally assess costs at the finish of the matter. It is likely that arbitrators or service companies will require payment of fees and charges up front leaving the parties to work out an agreement. It is feasible for parties to wait for the decision and then implement (after) payment of fees and charges any arrangement they have between them to the extent of the losing party paying all the costs.
CONFIDENTIALITY: Arbitration is confidential; Parties. can if they so choose break the confidentiality. One must, before arbitration, clarify this issue. Documents, evidence and information utilized during arbitration can become a serious matter. Are documents, evidence or information used in arbitration open to a court subpoena? What, if anything can be divulged to the media, family, friends, the public or associates? What is the position of the arbitrator(s) on these matters? In most instances confidentiality is the rule, however, each party must be very careful here. A separate agreement between the parties can be utilized. Parties must discuss the issue of confidentiality with the arbitrator(s) prior to beginning and be satisfied they understand the arbitrator(s) position on same. It is feasible in specific circumstances that materials used in the arbitration process can be open to subpoena. This is an area that parties must pay particular attention to. The newsletters position is that “ an ounce of prevention is better than a pound of cure”. Thrown in the mix are also state ADR statutes and case law.
MEDIATION: An ADR modality(form) involving a NEUTRAL third party(mediator) assisting in resolving disputes in a non-adversarial manner.
MEDIATOR’S ROLE: To facilitate (help) and realize through methods to be discussed communications between parties enabling the narrowing of issues, development of needs, interests and options toward problem-solving and resolution.
There are numerous forms of mediation such as transformational, interest based or court based (all of which will be discussed).
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