Why Consider Arbitration or Mediation?
When your legal dispute is referred for Arbitration or Mediation, it is important to remember that you are still involved in an adversarial legal process. You are entering an unfamiliar arena, where an experienced opponent may have the advantage. If you agree to binding Arbitration, you are committing yourself to the decision. I have more than 20 years of experience practicing before Arbitrators and Mediators, as well as being one myself. As a near-charter member of the New Jersey Supreme Court's Civil Mediation system, I have mediated other people's cases over 100 times, and have become a Program Mentor, to whom new Mediators are required to come, to learn the process. I have also practiced dozens of times before other Mediators or Arbitrators, with my owncases, and usually prefer that route to a decision to litigating in court. This often leads to settlements that save a great deal of time and money.
The benefits of Mediation
Mediation is often preferred over Arbitration because, with no binding decision to be made, it is much faster and cheaper, requiring less paperwork, and less research and preparation. This is not to say it is any less of a careful process. When I mediate other people's cases, I try to offer them precisely the service they would receive from a Judge, with as much knowledge of the pertinent law as they would have a right to expect in court. They can speak to me in confidence, and I only tell the other side what I have heard when I have permission to do so. My advice to the litigants and their attorneys is intended to foster a trusting reaction, so that they can feel confident that whatever compromise is to be made makes sense, and leads to a just result. The process, however, is far more convenient and informal, with a date, time and location to which everyone agrees, and a chance to speak more freely than one would in open court. I have been able to bring about many dozens of settlements, sometimes hearing from the attorneys afterward that they didn't think it could happen in their case.
Similarly, when I am someone's attorney in a case, and it is going to Mediation before some other Mediator, I always prepare the evidence, and craft an argument, that reflects all my experience practicing in the courts. Normally, we submit written statements to the Mediator in advance. This is an obvious opportunity for the client and myself to get our collective act together, refining our position, and correcting any confusion the fact that we will persuade the Mediator - and therefore the adversaries - that our position is pretty much what it will be in court, if we don't settle. I wish I could say that all the attorneys practicing before me as a Mediator do this too, since it is a chance to save their clients a lot of time, money and anguish. However, most of them do take this opportunity, so I read every word they give me, and when necessary, I research the case law or statute involved.