07_mediation and arbitration

8/10/2019 07_mediation and Arbitration

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Mediation

Arbitration

Litigation


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Litigation

Litigate

Resort to legal action to settle a matter; be involved in a

lawsuit.

Trial b ur decisions & awards b anel of

amateurneutrals & judge) Trial by judge (decisions & awards by judge)


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Mediation

Mediate

A non-binding process in which a third party person

works with other parties to reach an agreement


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Arbitration

Arbitrate

When a third-party hears evidence from other parties

and makes a judgment or decision which is binding byall parties.


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Litigation

Litigation is generally something people seek to avoid.

It's expensive, time consuming, emotionally draining

and unpredictable - until a judge or jury decides thecase, you can never be certain of the outcome. Because

liti ation is so inefficient for most of us alternative

dispute resolution, such as arbitration and mediation,has become increasingly popular.


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Arbitration

Arbitration and mediation are similar in that they are

alternatives to traditional litigation, and sometimes they

are used in conjunction with litigation (opposing partiesmay first try to negotiate, and if that fails, move

forward to trial .

Both arbitration and mediation employ a neutral third

party to oversee the process, and they both can be

binding. However, it is common to employ mediation

as a non-binding process and arbitration as a bindingprocess.

In simpler terms, binding arbitration replaces the trial

process with the arbitration process.


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Arbitration

Arbitration is generally conducted with a panel of

multiple arbitrators who take on a role like that of a

judge, make decisions about evidence and give writtenopinions (which can be binding or non-binding).

arbitrator, the most common procedure is for each side

to select an arbitrator. Then, those two arbitrators select

a third arbitrator, at which point the dispute is presented

to the three chosen arbitrators.

Decisions are made by majority vote.


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Mediation

Mediation, on the other hand, is generally conducted

with a single mediator who does not judge the case but

simply helps to facilitate discussion and eventualresolution of the dispute.


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Mediation

Mediation has enjoyed increasing popularity as an

important part of the litigation process.

For example, in Florida, almost all lawsuits are

required to be mediated before a court will allow them

.

this requirement, according to the Florida senate, is

because mediation has proven effective in reducing

court dockets and trials, and offers a more efficient,

cost-effective option to litigation.


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Mediation

Mediation enjoys such high success rates because the

parties are brought together in an environment where

they can freely and confidentially present their positionin front of a neutral third party.

into proper perspective. Participants often feel much

better after having an opportunity to get things "off

their chest," and also benefit from hearing the other

party's point of view. The neutrality and more relaxedatmosphere of mediation may eliminate the desire to

continue hostile litigation once both parties have seen

all the issues in a fair light.


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Mediation

Mediation can be used for any kind of dispute; there is

no need to wait until a dispute results in a lawsuit and is

sent to mediation by a judge.

Pre-lawsuit mediation is becoming more widely

they turn into litigation.

Besides being confidential and non-binding, mediation

is relatively quick and inexpensive compared to

litigating a dispute.


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Construction Mediation

MEDIATOR SELECTION


MEDIATOR SELECTION

Candidate must be a neutral, disinterested individual

with nown mediation sills and e! erience who can

mana#e the mediation "rocess and brin# it to asuccess$ul conclusion %settlement& $or all involved "arties

and staeholders'


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(rior to )earin#s


(rior to )earin#s

Identify mediation parties & stakeholders

Written re-mediation summar statements b the

parties to the mediator (facts & law) Adjust the partiespre-mediation attitude

(reconciliation & compromise)

Exclude representatives with preferences forarbitration or litigation


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)earin# (rocess


)earin# (rocess

Parties present at the mediation offer openingstatements, summarizing their position

Parties are then placed in separate rooms withexhibits & witnesses to explain their positions &proofs to the mediator (facts & law)


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)earin# (rocess


)earin# (rocess

Mediator communicates facts & legal positions(authorized by each party) from one party to the other

(information exchange) Acting as communicator & go-between, mediator

presents each partys best settlement offer (or none,at first)

Exchange of information & offers continues until amutually agreeable settlement is reached & signed byall parties


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A *ood Settlement


A *ood Settlement

Generally defined as an obvious displeasure with the

mutually agreed settlement, offset by an overriding

relief of having the process completed & now in thepast

Terms of a settlement can also assume forms other

than just Money


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Arbitration +s' Mediation

The Di$$erences

Arbitration +s' Mediation

The Di$$erences

Construction arbitration awards are decided &

written the arbitrators onl

Construction mediation settlements are reached &

writtenby the parties only with the help of a

mediator/facilitator

Construction mediators and arbitrators must be

familiar with the construction process and parties

involved


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Construction Arbitration

hat is It-

Construction Arbitration

hat is It-

A binding & final decision rendered by one arbitrator(knowledgeable in construction) or an experienced

arbitration panel selected and agreed upon by theparties

An arbitrator serves as both the judge & juror,

deciding facts & law (which to believe & adhere to)


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Construction ArbitrationNon./indin# Arbitration

Construction ArbitrationNon./indin# Arbitration

It isnot arbitration . . . It is mediation (and a waste oftime & money, usually)

By definition, arbitration is legally binding on allparties & enforceable by law in the appropriate court(judgments issued by the court are identical to an

arbitrators award)


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