An Opportunity To Work With Expert Neutrals
The individuals who assist the parties are impartial, knowledgeable, independent and trained experts in dispute resolution. We offer a variety of subject matter experts dependent on the topic of the dispute.
Many of the alternatives to litigation permit custom-tailored and creative approaches to conflict resolution, ensuring optimal outcomes for particular problems.
Parties have more control over the process and the results. In comparison – during litigation, the disputants relinquish control to the judge and jury.
Optimal Outcomes For All Parties
Negotiation and mediation can result in innovative and mutually beneficial solutions, as a result of parties focusing their energy on problem-solving rather than fighting.
Personal Satisfaction With The Resolution
Having an opportunity to explain your concerns and to participate in resolving your dispute increases the likelihood that you will be satisfied with both the process and the outcome.
Preservation of On-Going Relationships
Disputing parties who have an on-going family, neighborly business, or working relationship may benefit from working together to achieve a mutually acceptable resolution to their dispute. Parties who understand each other’s concerns and develop satisfactory solutions to address these concerns often improve their relationship and enhance their ability to work together in the future.
Under applicable rules, mediators, arbitrators and dispute resolution agencies are generally obligated to maintain the privacy and confidentiality of the proceedings. The parties themselves may also agree to confidentiality. This may avoid publicity and embarrassment.
Resolution of All Issues
Alternative processes can address and resolve all problems you may have with another party. Sometimes going to court can only resolve part of the problem.
Saves Time and Money
Many alternative processes provide convenient and simplified proceedings, speedy results, solid solutions and substantial time savings. These efficiencies can reduce legal fees and related costs.
Do not let anyone tell you that your only choice is to sue. You can handle your dispute as you see fit. Carefully consider your alternatives to decide which is the most appropriate. The primary methods of alternative dispute resolution are negotiation, mediation, and arbitration.
Negotiation is a voluntary and informal process to discuss conflict and to reach mutually acceptable agreements. The participants decide whether the process will be private.
The parties also have the choice of appointing individuals, such as attorneys, to assist them in the negotiation. Prior to the negotiation, your attorney can help you determine your goals and objectives. During the negotiation, the attorney is responsible for protecting your interests and keeping you informed.
The parties themselves, not their attorneys, decide whether to accept or reject a settlement offer.
Mediation is also a voluntary, private and informal method of discussing your problem and reaching an agreement. In mediation all parties meet with a trained neutral third party, known as a mediator, to seek an agreement that is acceptable to all disputants. Although mediators may help the parties negotiate effectively, they do not dictate or recommend an outcome. The mediator’s function is to draw out all the concerns of each of the parties, assist in ensuring accurate communication, outline issues and help the parties generate solutions. If all disputing parties cannot agree, the mediator has no authority to impose a result. The costs of mediation include the mediator’s fees and possibly an administrative fee. Each participant pays his or her own attorney.
Arbitration is more formal than mediation but less formal than going to court. Arbitration is a private process and can be speedy and economical. It may be binding or non-binding, as the parties decide at the start of the proceedings.
Binding means the decision is legally final, with no appeal allowed, and is enforceable in court.
Non-binding means that if you or the other party does not like the decision you still have the opportunity to go to court and have your dispute litigated.
At the arbitration hearings, all parties give evidence, either written or through witnesses, to neutral decision makers called arbitrators. The arbitrators then decide the outcome of the dispute. The arbitrators are selected by the parties or appointed from a preselected list. The parties present written and oral evidence, as in court. However, the proceedings are informal and are often held in a conference room rather than in court. The disputants are not involved in fashioning their own resolution as in mediation, but instead, have a resolution imposed on them by the arbitrators. The arbitrators usually decide a case by issuing a written decision or award following the arbitration hearings. Arbitration costs include the fees of the arbitrators, administrative fees, and attorneys’ fees. Parties pay their own attorney’s fees, but usually split the administrative and arbitrators’ fees.
In addition, the growth of alternative dispute resolution has resulted in several combinations of dispute resolution processes: early neutral evaluation (ENE), mediation-arbitration (med-arb), mini-trial, rent-a-judge, neutral expert, and ombudsman. To understand these processes and their appropriate uses, you should consult an attorney knowledgeable in alternative dispute resolution.
Alternative dispute resolution has successfully resolved a wide variety of disputes. The following are disputes frequently resolved using alternative dispute resolution methods:
Contract claims, commercial problems, organizing or closing a business or partnership, insurance claims, real estate transactions
Contractor/client disputes, architect problems
Sales/purchase disputes, warranties, refunds, repairs, deposits, services, interactions between sales personnel and customers
Contracts, discrimination, sexual harassment, wages, dismissal, working conditions, communication
Parenting, visitation, domestic disputes, custody, divorce and separation arrangements, spousal and child support, property issues, elder care
Lease agreements, rent, repairs, security deposits, evictions, services, apartment entry, lockout, pets, communication between tenants and management
Noise, boundary/property lines, pets, parking, problems between children, parents, and neighbors
Losses in the securities and commodities markets
Accidents, debts, property, services
Automobile accidents. personal injury claims, professional malpractice.
Alternative dispute resolution processes often save:
- Disputants who use an alternative dispute resolution process often find their dispute is settled more efficiently than through litigation. Settling the dispute quickly saves money.
- Some alternative dispute resolution programs run by community organizations or the courts use volunteers as the neutral party. This permits the dispute to be settled for a low charge or even no charge at all.
- Numerous alternative dispute resolution programs offer free or low-cost services to low-income persons.
If all disputants agree, alternative dispute resolution processes may be used before or after a lawsuit is filed.
Although many disputants readily agree to use alternative dispute resolution, some are skeptical of alternative processes. Here are ways to encourage another party to try alternative dispute resolution:
- If the other party is angry or standing on principle, WAIT. Let the reality of the expense, risk, and delay of going to court sink in before you propose an alternative.
- Ask the other parties to consider alternative dispute resolution. Suggest that a neutral person be brought in to explain the advantages of alternative dispute resolution. The other parties may feel the neutral person is objective and may listen to and trust the information given by a neutral authority.
- Ask the neutral intervener to make the initial contact with the opposing party and put the burden on the neutral to explain alternative dispute resolution and its advantages. After all, the neutral is skilled in making such presentations.
The answer depends on which alternative dispute resolution process is used.
Negotiation usually results in the parties making an agreement. An attorney can make sure that the agreement will be binding and enforceable in court.
No one, not even the mediator, can force the parties to reach an agreement. Only when all disputants accept an agreement is the mediation process concluded. Parties who shape their own agreement usually comply and do not need a court’s enforcement powers.
An agreement reached by the parties is binding and enforceable in court if it satisfies the requirements for a contract. If a party fails to abide by the contract’s terms, the other party may either remediate the issue or seek to enforce the agreement in the court system. Once again, an attorney will help make sure that your agreement can be enforced.
If the parties have agreed to a final and binding award, the award will be legally enforceable in the New York state courts or in the federal courts. An arbitration award is as effective as a decision made following trial because New York state law and federal law allow a party to confirm an arbitration award into a court judgment. An attorney can advise you further on enforcing an award.
The information on this page was generated from content on the New York City Bar Association website. Within the article “Alternative Dispute Resolution: How To Resolve Your Dispute Without Going To Court.”