Litigation in our court system has become an expensive, time-consuming, and frus trating process which often yields undesired results. Nevertheless, a trial may be necessary to vindicate certain fundamental rights. For many disputes, however, there are alternatives to trial. This article addresses some of the alternatives, known collectively as "Alternative Dispute Resolution ('ADR')," and their potential benefit.
ADR is the use of alternatives to the judicial system to resolve disputes. The most common forms of ADR are mediation and arbitration. Familiar uses of these forms of ADR include labor strike mediation and baseball salary arbitration.
ADR is not new. For instance, George Washington's will provided that any disputes were to be resolved by arbitration. Further, the American Arbitration Association, one of the largest groups providing a forum for mediations and arbitrations, was founded in New York City in the 1700's.
The two best known and most used for ms of ADR are mediation and arbitration. In addition, there is med/arb, "settlement conferences," mini-trials, and the use of "rent-a-judges."
Mediation is the use of a neutral third party, known as the mediator, who serves as a facilitator to allow parties to a dispute to reach a resolution on their own. Unlike arbitration (which is discussed below), the med iator does not make judgments about either side's position. Rather, he/she listens to both sides in an attempt to find common ground upon which a solution can be reached.
A mediator is also often able to work with the parties to reduce their animosity so that they can reach the point of getting down to the basics, namely, determining each party's desires to settle this dispute. By using this non-judgmental approach, the mediator is often able to allow the parties to fashion, in almost any manner whatsoever, a settlement that would satisfy them both. Thus, rather than having a winner and a loser, as is often the case in arbitration or a trial, mediation can provide a "win-win" solution.
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Darryl Horowitt, Esq., has conducted all phases of litigation in the areas of Banking, Business Disputes, Securities Fraud (class action and individual), Construction, Real Estate, Environmental, Casualty Insurance Defense, Personal Injury and Commercial Collections, from initial client contact to settlement, mediation, arbitration and trial - court and jury (State and Federal Court) and administrative proceedings (before the United States Environmental Protection Agency, Department of Agriculture, National Labor Relations Board, California Department of Fair Housing and Employment, Worker's Compensation Appeals Board and Agricultural Labor Relations Board).
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