Alternative Dispute Resolution is the broad heading for two distinct methods of resolving matters without the court system: mediation and arbitration. There are other forms of alternative dispute resolution that are more specialized. For instance, in family law, collaborative law is a form of mediation where parties to a divorce action come together with a collaborative mediator to form a cost-effective divorce agreement.
In mediation, a mediator attempts to have parties resolve their disputes voluntarily. The mediator listens to both sides and attempts to find a win-win solution. The most successful mediators analyze each party’s goals to determine if there is an amicable resolution, which is not always based on monerary values.
In arbitration, an arbitrator acts as a judge and makes a finding in the matter, which is usually more cost-effective than going through a traditional, lengthy court proceeding. In most circumstances, the arbitrator’s findings are binding on all parties under the governing state law or Federal Arbitration Act. You should understand the consequences of the binding effect of arbitration before entering into an agreement to arbitrate. You should also understand how to enforce or to contest an arbitrator’s findings in your jurisdiction.
How Do I Become an Arbitrator or Mediator?
Mediators and arbitrators can be appointed or they can be hired on a private basis. Many jurisdictions now have required training courses or necessary certifications before a person can serve as a mediator or arbitrator. It is important to look for opportunities to receive training, including free training.
The best way to learn to become a mediator or arbitrator in your jurisdiction is to find an attorney who practices ADR and ask for advice. There are usually many different routes to becoming a mediator or arbitrator—do not limit yourself to advice from just one person.
Also, consider joining the ABA’s ADR Section and your local bar association’s ADR Section, both of which offer great networking opportunities. You can learn how to find cases to mediate or arbitrate as well as build skills to become a good mediator or arbitrator through publications, courses, and webinars. There are other trade organizations for ADR professionals as well, such as the American Arbitration Association and the Association for Conflict Resolution that offer networking and case-building opportunities.
How Do I Practice Before a Mediator or Arbitrator?
Practice before a mediator or arbitrator bears similarities to practicing before a judge, but there are key differences. For instance, in each forum, the practitioner must treat the decision-maker with respect. However, with mediation and arbitration, the forum is usually more informal than a courtroom. It is important to note if there are any jurisdiction-specific practice rules regarding the procedure to be used in a mediation or arbitration.
The successful attorney will enter the ADR process with a win-win attitude. The benefit to ADR is the cost-savings due to the speed of reaching a decision-maker. By being cooperative and collaborative, the attorney can use the experience to resolve a difficult case.
Tips for a Beneficial ADR Process
Before the mediation or arbitration, take time to prepare your case. Know the facts. Speak to your client about the goals of mediation or arbitration. For instance, you might think that in a breach of contract action, money damages are the only resolution. But if you talk to your client, you may learn about other ways to compensate your client, such as continued future business or other creative resolutions.
Develop a negotiation strategy with your client prior to the mediation or arbitration. Knowing your client’s bottom line can be very important, particularly where the position might be considered unreasonable by the other side. You should think of ways in advance to justify this position even if it involves thinking outside the box.