Arbitration is another form of alternative dispute resolution, the methodology of which can be formatted by the parties. Arbitration can be binding or non-binding, formal or informal. Decisions can be based on document submission only, live testimony or a combination of both. Discovery may be minimal, full blown or non-existent. Most arbitration awards are confidential, given only to the parties and not made part of the public record. Parties choose the arbitrators. The parties may agree to resolve disputes through arbitration before or after the dispute arises. Businesses which use arbitration as part of a dispute resolution system often learn of problems while they are still inexpensively remediable.

While you cannot select your judge at trial, party participants can make a reasoned selection of arbitrators. Unlike many judges, panelists with special skills and expertise are available. Arbitrators are accessible, can sometimes rule during a deposition and do not make you wait months to decide on motions or other interim relief.

Arbitration includes every aspect of human conduct in every area of legal practice. It would appear to be the superior forum for nearly every dispute requiring a neutral third party decision. The amounts at stake may range from a token amount or to hundreds of millions of dollars or may just relate to a dispute of principle.

The parties can determine the issues, scope of relief and the actual framework for resolution. Here are some examples of different arbitration methods:

1. MED-ARB: The parties first mediate and, if unable to settle, they arbitrate. The neutral may serve in either or both capacities (mediator/arbitrator), or may opt out if an impasse is reached at mediation.
2. FACT-FINDING: After reviewing evidence and argument, the neutral issues a non-binding report of his findings and often recommends terms of settlement.
3. MINI TRIAL: In its simplest form narrows the issues and encourages settlement by providing a confidential, non-binding information exchange. Mini trials are often used as precursors to complex litigation.
4. PARTNERING: Involves bringing together all participants in a transaction or project before its commencement in order to avoid inevitable disputes down the road; can be used, for example, with a group of investors and principals in a new venture.
5. HIGH/LOW: Where the parties agree to limit the possible range of the decision and/or the parties may preliminarily agree not to tell the arbitrator the agreed range and/or the parties may agree in advance on maximum or minimum payments, and/or damages might be set in advance with the arbitrator only determining liability.
6. PRIVATE JUDGING: This consists of a private trial presided over by a former judge or other trial attorney chosen by the parties using agreed procedures which may or may not incorporate state or federal rules of procedure. AFI has a particularly satisfactory setting for this in its modem electronic courtroom facility. The parties agree on the timing and flexibility of the trial, appealability and confidentiality of the judgment, evidentiary rules, or anything else they may deem important. The rules here are not necessarily hard and fast and the definitions may merely be guidelines. Importantly, the parties have the power to define the rules. Arbitrators will assist in defining the procedures to suit the parties' needs.

In New York, filing fees would only be incurred in the event of litigation in court. If the court refers a case for arbitration to AFI, there would be no additional filing fee. There would be an arbitrator's fee and, of course, counsel fees if the party is represented by counsel. The arbitrator's fee may depend on the complexity of the case and the amount of the dispute. AFI's arbitrator's fees start at $350.00 an hour. But a daily rate can be arranged.

The subject of dispute should be clearly identified and described insofar as claims, defenses, affirmative defenses, counterclaims and other factors are to be decided. Damages should be quantified and each item should be made clear as to claim, counterclaim or set-off.

Arbitration is a streamlined process. Depositions can occur, and frequently do occur, especially if the case is in litigation. If the case is not in litigation, depositions probably should be discouraged and other expensive discovery curtailed. The parties should provide a summary with the identification of witnesses and the subject matter of anticipated testimony, and resumes of experts should be included.

Lawyers should attempt to reduce the amount of contention and try to engage in fellowship in arbitration proceedings; counsel should not feel the need to fight over every concession. Stipulation to uncontested facts should freely occur. Cooperation between counsel should be the hallmark of arbitration.

It is best if exhibits and briefs are submitted ten days in advance of the hearing, including all summaries, diagrams and charts that will be used at the arbitration.

Generally, formal rules of evidence should not apply in arbitrations. Arbitration is intended to be less formal than court trials and can be structured to accommodate pro se parties unfamiliar with the legal process. It should be expected the arbitrator will announce that the rules of evidence will be liberally construed.

As in mediation, confidentiality is the general rule; the arbitrator may not use or communicate information acquired during the arbitration to any individual or entity outside the arbitration process or proceeding.

Witnesses can testify in person, or by telephone or video. This is particularly helpful in the event that expert witnesses are used

The parties can specify what kind of award they prefer. Awards can run the gamut from a simple damage award to a full judicial-style determination with findings of facts and conclusions of law. The selection of the type of award can be made at the beginning of an agreement to arbitrate. The parties may submit a proposed award or order to be later incorporated in a court order.

Here again, the parties may build an arbitration agreement specifying the grounds, if any, to vacate or reverse the arbitration determination or appeal it. There is a Federal Arbitrations Act, and that may be followed if desired. Generally, an arbitration award would only be overturned if the arbitrator knew of and refused to apply a governing legal principal or acted arbitrarily and capriciously. In other words, if a decision is totally unsupported by the evidence and there has been a clear disregard for the law, the arbitration award might possibly be overturned, but again, that depends upon whether the parties have previously agreed on the appeal ability or grounds for that vector of the arbitration determination.

Please contact us at AFI for further information. if you need one of our principals to discuss other ramifications of these procedures, we would be happy to do so individually or in a group setting.

"Mediation" calls into play a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is the informal and non-adversarial processes with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem-solving and exploring settlement alternatives. Mediation is a conflict resolution process quite different from the historic adversarial methods usually occurring in a formal courtroom. A mediator assists the conflicting parties in developing more effective conflict management skills. Mediation can be a directed exercise in self determination, as opposed to the unpredictable imposition of judgment by the traditional court system.

Mediation in recent years has gained an extremely positive response from judges, attorneys and litigants; it has helped to alleviate ballooning court dockets to a large degree and has evidenced itself as a very efficient methodology that is results oriented for all participants involved.

We at Advocate's Forum believe that mediation is not a part-time hobby or an honorary title, but a serious discipline that requires a mastery of negotiation skills. As such, it requires the sustained effort from its practitioners to achieve consistent quality and effectiveness. Simply being an experienced trial attorney or tenured judge is insufficient, for mediation is distinct both in concept and practice, from advocacy and adjudication. Indeed, merely rendering an opinion on how a case may turn out does not represent the true spirit of mediation, but is only the purchase of another's opinion which may be of dubious value.

Mediation requires that in addition to legal and trial skills, the mediator must be able to analyze complex problems, apply logic and risk analysis, initiate negotiating momentum, foster creative problem solving and be adept at managing human dynamics. In short, it requires the highest-caliber lawyers who are able and willing to invest a great deal of time in acquiring and perfecting these skills. It is for this reason, that Advocate's Forum requires its members, regardless of where they practice law, be well experienced and trained as professional mediators wholly familiar with the professional standards of ethics and conduct.

An increasing number of corporations and government entities have realized the need for expertise in the general field of conflict management. In the State of New York, it is expected that a state-wide system will be implemented for processing thousands of property insurance claims designed with accelerated procedures to hopefully free the judicial system from caseloads in the event of wide spread disasters. There is a proposal for the state prison system to resolve disputes between inmates and the prison administration, as well as systems to cope with sexual harassment and other job related complaints within the corporate environment. The following is a list of potential complex dispute situations involving private, corporate and/or governmental disputes:

1. Catastrophic events
2. Commercial-business
3. Construction defects
4. Healthcare
5. Insurance
6. Medical
7. Municipal
8. Personal injury
9. Product liability
10. Professional fees
11. Professional malpractice

Candor during mediation is encouraged by maintaining the expectations of the parties and the mediator regarding confidentiality of mediation communications. Protecting mediation confidentiality is critical to the successful and effective use of mediation to resolve disputes. Mediators typically promote a candid and informal exchange regarding events in the past, as well as the perceptions and attitudes of the parties towards these events; and mediators encourage parties to think constructively and creatively about ways in which their differences might be resolved. This frank exchange can be achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes.

Confidence in and voluntary use of mediation will continue to expand if people have confidence that the mediator will not take sides or disclose their statements, particularly in the context of other investigations or judicial processes. The mediator should and will be prevented from testifying in the future, so as not to be viewed as biased in future mediation sessions. It is important for the participants and the public to perceive mediators as being actually impartial and fair.

Mediation is a consensual process in which the disputing parties decide the resolution of their dispute themselves with the help of a mediator, rather than having a ruling imposed upon them. The parties' participation in mediation, often accompanied by counsel, allows them to reach results that are tailored to their interests and needs and leads to their greater satisfaction in the process and results. The disputing parties often reach settlement earlier through the mediation because of the expression of emotions and exchange of information that occurs as part of the mediation process. There is a great benefit when conflicts are resolved earlier and with greater participant satisfaction.

Earlier settlements can reduce the disruption that a dispute can cause in the lives of others affected by the dispute, such as children of a divorcing couple, or the customers, clients and employees of businesses engaged in conflict. When settlement is reached earlier, personal and societal resources dedicated to resolving disputes can be invested in more productive ways. The justice system benefits when those using it feel satisfied with the resolution of their disputes because of their positive experience in court-related mediation. It becomes more appropriate for judges to refer cases for mediation, and this enhances positive perceptions of the judicial system. Consensual dispute resolution allows parties to tailor not only the result, but also the process to their needs, with minimal intervention. For example, parties can agree with a mediator on the general approach to mediation, including whether the mediator will be evaluative or facilitative.

This party agreement is a flexible means to deal with expectations regarding a desired style of mediation and so increases party empowerment. Individual empowerment appears to be the essential benefit of mediation. Self-determination is encouraged by limiting the potential for coercion of the parties to accept settlements and provisions that allow parties to have counsel or other support persons present during mediation sessions.

Advocate's Forum has modern, formal or informal, comfortable facilities for all levels of formality versus less formality in both mediation and arbitration, including facilities to undertake mock trials, shadow juries, mini-trials or plenary trials. Its futuristic electronic courtroom facility is available and must be seen to be appreciated. However, we at Advocate's Forum are most excited about the mediation process, although we have been involved in many, many arbitration situations. In "mediation", the emphasis is on negotiation and is more intended to exclude adjudicative processes, such as arbitration and fact-finding as well as counseling. Private mediation alleviates some difficult issues that arise in mediations that are conducted by judges during the course of settlement conferences in pending litigation.

Concern has been expressed that party autonomy in mediation may be constrained either by the direct coercion of a judicial officer who may make a subsequent ruling on the matter or by indirect coercive effect that inherently inures from the parties' knowledge of the ultimate presence of that judge. Judicial settlement conferences are typically conducted under court or procedural rules which, as part of the case management, do not provide the parties with an expectation of confidentiality in a proceeding. Such settlement hearings frequently lead to court orders regarding discovery or issue limitations entered into a public record and therefore the confidentiality of the proceedings is not furthered. To the contrary, private mediation settlement conferences promote full and frank discussions between the parties.

The ultimate goal in the mediation process is a settlement agreement reduced to a writing. This is the end result of the parties' empowerment and this is the only part of the mediation communication that is consensually admissible and enforceable as the future may require.

In business disputes, mediation could deteriorate into a mere interruption of ill-tempered litigation for an equally litigious negotiation. If it does, that probably involves less than good lawyering. A function of the mediator is to turn mediation into something very effective for the business client and perhaps provide information useful if the litigation continues. The mediation experience can be turned into an advantage when counsel and client perceive how different the mediation forum is from a trial setting; counsel needs to consider how best to employ and redirect advocacy skills in this framework.

Mediation falls into the general sphere of "ADR" (Alternate Dispute Resolution), but it differs from the multitude of variations on the arbitration theme in that the mediator, although often regarded by clients is having an independent, judge-like role, in fact has no authority to impose an outcome on the participants. Mediation is an entirely "voluntary" process.

Even if a case is not "ready" to settle, counsel and parties should be very much aware that an unsuccessful early mediation may nonetheless provide useful insights about the opposing parties' view of the merits and the evidence and leave clients with "something to chew on" that may lead to resuming discussions later. So even if the timing seems wrong, counsel and clients should consider investing serious effort in mediation to see what they can learn in the process and to lay groundwork for future negotiation, possibly even for a resumption of the mediation down the road.

Trial lawyers seeking jurors most often do not want a juror deciding a case who has particular knowledge, skill or expertise in an area where they may sway the rest of the jurors. The same reasoning may well be employed by the lawyers and clients who participate in mediation who may decide that the mediator should not deliver a dissertation on the law or make rulings, but simply bring the parties together. Mediating as a profession involves many more skills than just knowing the applicable law. One might argue that with a mediator without knowledge of the specific subject matter of the claim will require additional time and investment due to a sharp "learning curve". However, this same process applies to jurors and judges. It should be the lawyer's job to educate the mediator by providing either a pre-mediation summary or an effective opening statement; if it is important for the mediator to know all of the technical jargon, then perhaps co-mediation can be utilized with both a skilled mediator and a subject matter specialist.

We at Advocate's Forum, are ready to employ either co-mediators or experts as necessary or as requested by the parties to participate in a complex mediation requiring particular expertise.