What is arbitration?
Arbitration is the process whereby the issues are resolved by a ruling by the arbitrator. The decisions are made “according to law.” The arbitrator applies the law, and gives written reasons for the conclusion.
What is mediation/arbitration?
Mediation/arbitration is a two-step process, the first being mediation. The lawyer engaged first proceeds through a mediation process to see if an agreement can be reached between the parties. The parties decide if an agreement is reached. The agreement can be different than the law, but the parties must have an awareness of legal principles, and consider applying legal principles. However, they can decide how the result will be in the mediation process.
If in the mediation stage, no agreement is reached, then the matter proceeds to arbitration. Thus, there can be arbitration, without any mediation stage, or mediation, followed by arbitration if no agreement is reached in the mediation process.
How much does mediation/arbitration cost?
The cost would be the same as mediation, if the case is resolved in the mediation stage. The mediation stage will probably have all individual meetings, probably at least two joint sessions. Most cases, even though they are mediation/arbitration, obtain a result in the mediation stage. The cost may be $4,000 or $5,000, in total for the mediator/arbitrator. Each party could have their own counsel and that may increase the cost to the individual party.
If the case moved to arbitration, the cost may be a further $6,000 or $7,000 in total for the mediator/arbitrator. This is because the arbitrator not only has to hear the evidence, and receive submissions or argument, but must write a reasons for judgment or ruling as to the conclusion of the proceeding. The cost can be even greater, but the idea is to see if the arbitration process can be restricted in terms of time, evidence called, and scope. Sometimes this is called Simplified Arbitration. This would be discussed at the end of the mediation stage.
Must there are always be mediation prior to arbitration?
No. Parties could choose to go directly to arbitration. However, mediation may resolve the conflict, in a more pleasant and satisfactory manner, and less expensively because the strict rules of evidence and procedure do not have to be implemented in the same way as in arbitration.
Who hires the arbitrator?
The usual situation is that both parties hire the arbitrator, and both pay half the cost, but in some circumstances, the entire cost is paid by one person.
Where does the arbitration occur?
If it is mediation/arbitration, the mediation stage would most likely occur at DeRusha Law, in a Boardroom. However, a boardroom elsewhere could be obtained. Arbitration may occur in a boardroom, but may require even larger facilities because there are witnesses, sometimes called at the arbitration process. Some arbitration processes even require court reporters to be present to take down the evidence so that it can be provided in transcripts.
What is the advantage of arbitration in comparison to a court?
A court is a public hearing. Whatever is filed with the court can be obtained by the media. Mediation is generally totally confidential, except for the ultimate agreement. Arbitration rulings may be mostly confidential, but could result in some information going to the court in terms of turning the ruling of the arbitrator into a court order so that it can be enforced. In some cases, no court orders have to be obtained because parties voluntarily agree to do as set out in the arbitrator’s ruling.
How long does it take from the beginning to the end?
If the mediation/arbitration process is used, the mediation attempt will probably take about three to four weeks, and for the arbitration, another three to four weeks.
Who is in the room besides the arbitrator and the parties?
Either party may bring a lawyer, but they do not need to do so. Either party may also request another person or other family member be present.
How do we confirm that an agreement is reached in the mediation stage?
The mediator/arbitrator, in a balanced and fair way, will take the discussions, and if the parties have reached an agreement, put those into a draft agreement. This is made available for review by the parties, with each suggested to consider obtaining independent legal advice if they wish to do so. Both sign the agreement and exchange it, then the reasonable expectation would be that this is a binding, legally enforceable agreement.
Is there some form of screening to make sure everything is safe in the process?
Yes. If it is mediation/arbitration, the screening, or confidential discussions, will occur between the mediator/arbitrator, and each of the parties. The information obtained in this process will not be shared with the other side without the permission of the party.
If the matter proceeds directly to arbitration, the arbitrator will have to engage another individual to complete the screening process, and give a report to the arbitrator as to the safety and security a proceeding with the arbitration.
How does the process get started?
One party or the other, but sometimes both, will contact Arbitration Works. The Mediation/Arbitration Coordinator, who is also a trained Senior Law Clerk, will make the initial contacts. One party or both parties will proceed through the consultation. If only one party proceeds, an initial deposit (usually $500), will be obtained and the other parties will be contacted to see if they are prepared to proceed through the process. Both parties may attend at the same time to get the introductory explanation from the proposed arbitrator.
Does Arbitration Works guarantee a ruling?
Yes. If the parties commit to mediation/arbitration, or to only arbitration, a ruling will be forthcoming and the matter will be concluded.
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