Finding a Solution
Traditionally, parties look to the state or federal court system for redress when they feel wronged or have sustained damages. In doing so, the party looking for relief puts its fate in the hands of a judge or jury in court that does not have any real world knowledge or experience relevant to the dispute. As a result, the traditional litigation path may not always be the best choice in a given matter. We consider other options as well, such as arbitration or mediation, to help clients resolve their disputes in the most advantageous manner possible and often at a lower cost than traditional litigation. One advantage of alternative dispute resolution is that your “finder-of-fact” is typically an individual with real-world experience in the subject matter at dispute, providing you with an independent voice looking to reach a resolution that better matches the parties’ needs. While these alternative options are more often considered by institutional clients for significant matters, they can be just as effective for smaller matters.
Direct negotiation is the most basic, but many times least obvious, litigation alternative. Negotiation is simply two parties with a dispute sitting down and talking in order to find a solution to the dispute. Many times this direct approach is the most effective way to reach resolution. However, in order for direct negotiation to be effective, setting the proper tone and laying the groundwork for the negotiation is critical. This is where your choice of counsel is very important. If resolution is reached through negotiation, an agreement can be crafted to memorialize the agreement and create an enforceable contract.
Mediation is a common form of alternative dispute resolution. Mediation involves hiring a person knowledgeable in the industry that gives rise to the dispute who will help both parties communicate with each other until they reach an acceptable agreement. It is not a mediator’s role to determine who is right or wrong or which party should “win” but rather to help each side understand the other’s point of view to facilitate resolution. Mediation can be very effective where the parties are truly interested in reaching a resolution and need a little help to get it done.
Arbitration is another common form of alternative dispute resolution. In arbitration, an arbitrator acts as the finder of fact and is charged with making findings and ruling for one party or the other. One advantage arbitration has over traditional litigation is, similar to the mediator in the mediation setting, the arbitrator is usually someone with knowledge and experience in the subject matter at issue. An arbitration can be binding or non-binding. In a binding arbitration, the parties are bound to the arbitrator’s findings and can only “appeal” the arbitrator’s rulings on very limited grounds.