The voluntary process following Negotiation attempting resolution of the dispute involving the use of a neutral third person who facilitates settlement negotiations between the parties. Attorneys may or not be involved in the Mediation process.
Mediation is inherently non-binding allowing the parties to terminate their negotiations at any time prior to settlement without fear or prejudice. All communications between the parties and the neutral are privileged and protected by CA Evidence Code 1115, 1152, et seq, Federal Rules of Evidence 408, et seq. Many different forms and processes of Mediation exist.
Mediation is highly preferential to Arbitration for most disputes because it is expedient, efficient and effective. Matters which require 2-3 days time for Arbitration are routinely resolved via Mediation in less than 1 day. The savings of legal expense is self evident. Mediation should be strongly encouraged where good faith, preservation of the business relationship and/or where litigation is needless and avoidable. Even the most complex legal disputes, or matters of a highly sensitive nature can be submitted to Mediation. If the parties believe the issues in their matter are best resolved by themselves negotiating then Mediation is the preferred format. Mediation can be offered by any party at anytime before, during or even after the litigation has started.
Since 1991, Mediation through J.D.R. has resulted in an 87% settlement rate.
Of the 13% of the Mediations that do not settle at the first Mediation, over 91% of those matters will settle before going to trial. All disputes resolved in Mediation are reflected in a settlement document which is created by the parties, signed by the parties and enforceable in a court of law by all the parties.
Mediation as noted herein above is often referred to as Classic Mediation also known as Traditional Mediation, which is different in the process from Facilitative Mediation and from Early Neutral Evaluation. These distinctions can be advantageous depending upon the nature and substance of the dispute.
The parties and or counsel are strongly encouraged to contact the Case Administrator or J.D.R. Office Manager and speak confidentiality to determine if Mediation is appropriate for the intended matter.
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The process wherein the parties have previously agreed in a contract or subsequently agreed by stipulation to avoid litigation and in the alternative to submit their dispute to a mutually selected neutral third person or persons to make an adjudicatory resolution. The selected arbitrator is generally someone with substantial subject matter and litigation experience.
Unlike Mediation, the parties do not negotiate their disputes but allow their Arbitrator to make an award, finding, ruling, or result which is binding upon all signatory parties unless appellate review has been preserved. Arbitrations simply put are similar to a private bench trial, i.e., trial without an impaneled jury. Arbitrations are private and confidential but the awards may be become public when certified for enforcement in a local court.
The major advantages of Arbitration over litigation include, inter alia, the selection of a skilled neutral arbitrator by both parties, the limitations of the evidence, i.e., parties, experts, witnesses, documents, exhibits, etc. Here the parties can choose to participate in their matters as much or as little they wish.
In addition to a tremendous savings in legal expense and costs the parties can substantially limit their exposure to liability, damages, costs, attorneys’ fees, etc. by pre-hearing stipulations.
A very common example is the use of a high – low format where the parties negotiate and then stipulate in writing to their individual maximum and minimum exposures to damages. This is especially important when considering all damages whether: compensatory, consequential or punitive. High – low stipulations when used properly allow the parties to know their best and worst case scenarios before the Arbitration has started.
J.D.R. does not employ in-house rules or burdensome procedures and will follow the parties own ADR Clause or agreement. Unless otherwise requested or required, and to ensure uniformity and ease of format, all J.D.R. judges and attorneys, follow the CA Rules of Evidence, CA Code of Civil Procedure, or Federal Rules of Evidence or Civil Procedure or A.A.A. Rules where applicable.
Discovery limitations, motions, due dates, etc. are generally agreed upon in a telephonic or in-person A.M.C. (Arbitration Management Conference) which
pre-dates the Arbitration. This certainty of calendaring avoids the fear of continued courthouse trial date and allows the parties and counsel the freedom to adequately and fully prepare for their Arbitration.
Arbitrations are the preferred route for contractual, employment, real estate, medical malpractice and/or professional liability disputes where the parties or their representative counsel choose to resolve their dispute in a secure and professional environment conductive to the full development of all the issues.
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