Using Mediation and Arbitration to Resolve Legal Disputes
Civil court lawsuits and trials are the traditional method for resolving accident and injury disputes. However, concerns about court congestion and delays, rising litigation costs, and the negative psychological and emotional impact of litigation have increased the use of alternative dispute resolution (ADR) techniques. Two frequently used ADR processes are mediation and arbitration. Mediation is essentially negotiation facilitated by a neutral third party. Arbitration is a binding resolution process similar to trial, but with fewer technical rules and requirements. ADR procedures can be initiated by the parties or may be compelled by legislation, the courts, or contractual terms. Each method of dispute resolution has benefits and drawbacks. It is, therefore, important for an individual considering the use of ADR to understand the different processes in the context of their specific needs and goals.
Mediation
When parties are unwilling or unable to resolve a dispute, they often turn to mediation. Mediation is generally short-term, structured, task-oriented, and a "hands-on" process. In mediation, the disputing parties work with a neutral third party, the mediator, to resolve their disputes. The mediator facilitates the resolution of the parties' disputes by supervising the exchange of information and the bargaining process. The mediator helps the parties find common ground and deal with unrealistic expectations. He or she may also offer creative solutions and assist in drafting a final settlement. The role of the mediator is to interpret concerns, relay information between the parties, frame issues, and define the problems.
Mediation is usually a voluntary process, although in some cases statutes, rules, or court orders may require participation in mediation. Mediation is common in small claims courts, housing courts, family courts, and some criminal court programs and neighborhood justice centers. Unlike the litigation process, where a neutral third party (usually a judge) imposes a decision over the matter, the parties and their mediator ordinarily control the mediation process -- deciding when and where the mediation takes place, who will be present, how the mediation will be paid for, and how the mediator will interact with the parties.
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