Arbitration, then Mediation, a way to blend them both.
Many view mediation as a one-way street. You conduct a mediation to settle a law suite. Nothing could be further from the truth. There are many ways to blend mediation with the legal system or blending it with other alternative dispute resolution processes to reduce or resolve conflict.
One way is to blend arbitration and mediation so that the participants have the benefits of both arbitration and mediation.
The process begins with binding arbitration before a single arbitrator. At the conclusion of the arbitration session, the arbitrator immediately issues a binding decision and proceeds to seal it so neither the parties nor council know the result.
Immediately following the arbitration, mediation is conducted by a different neutral. This mediator, like the parties, also does not know the content of the sealed arbitration decision. If the mediation ends in a settlement, the arbitration decision is destroyed and the parties never learn how it turned out. However, if the mediation does not result in a settlement, the arbitration award is unsealed and disclosed, at which time it becomes final and binding.
This process of sealing the decision and potentially destroying the arbitration decision, if a settlement is reached, is negotiated between the parties and the arbitrator. It is accomplished in the arbitration service agreement. The length of time allowed for mediation must also be explicitly outlined in the agreement to arbitrate.
There are significant advantages to this arbitration-mediation model. First, it brings prompt finality to the litigation process, either though a binding arbitration award, or else through a mediated settlement.
The procedure also diminishes the overall cost of litigation. The actual cost of presenting a case in arbitration is significantly lower that a one to two week trial, stipulations between the parties can further streamline and simplify the issues. Medical expert opinion can be presented through medical reports, declarations and records.
There are other benefits beyond cost savings. The arbitration-mediation process encourages a more cooperative, less adversarial framework for resolving cases. The protocol allows parties and key claims personnel, such as the adjuster in charge of the file, to see how key witnesses present themselves at the binding arbitration prior to engaging in mediated settlement discussions. It also solves the case at a much earlier date that the potential four-year wait until trial.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
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