ADR Techniques Home

Summary of Techniques

Mediation, Arbitration
and Mini-trials

Summit Solutions offers both ‘traditional’ arbitration, mediation and mini-trials, described below, and also works with the parties to adapt these and other techniques to suit the needs of the particular case.

Whether Arbitration, Mediation (or some combination) or a mini-trial is appropriate depends on the situation. Arbitration guarantees a result; mediation does not. Mediation works well when the parties expect their business or other relationship to continue after the dispute. Arbitration is a more suitable alternative where the parties have unsuccessfully failed to come to a mutually agreeable resolution. Mediation will not necessarily be rule-based. Arbitration may be guided by rules and legal principles. Mediation is unlikely to be effective in the presence of great hostility between the parties or the absence of incentive to compromise. In such circumstances, arbitration may be the only hope of avoiding litigation or resolving a suit without trial.

MEDIATION
The mediation process is typically an informal procedure in which the parties meet with the neutral mediator, sometimes together and sometimes separately.

Mediation permits the parties to discuss the issues in a safe environment, to clear up misunderstandings, seek to identify areas of agreement, and come to a joint solution. The mediator does not impose a solution. In mediation, cheats speak for themselves and make their own decisions.

The mediator will explore the strengths and weaknesses of each side's case and share opinions with the parties. There are no rules of evidence, no testimony or cross examination, and no expert witnesses. A free but guided exchange is encouraged.

Mediation permits quick determination of the likelihood of settlement success. Each side may in confidence reveal to the mediator the range of an acceptable result (whether in dollars or other sought-for relief). A skilled mediator can work with that information, and the parties' nuanced communications, to come to a conclusion on whether the case can be settled. The resulting informed recommendation from the mediator is often key to the parties' reaching agreement quickly.

No recording or transcript is made. Privacy is preserved. Where the case involves personal injury, the plaintiff/claimant may be spared the need to be present and relive the trauma.

If the parties have counsel or representatives, the mediator may also assist in presenting the evaluation of the case to the parties directly. Parties often give weight to the opinions of a neutral party who has heard both sides.

Participants in mediation may sign a written agreement which is enforceable as a contract. They may also choose to pursue the voluntary solutions they have reached, preserving their right to go to court later if unexpected problems develop.

Mediation can bring parties together through a voluntary ‘summit meeting’ with a neutral facilitator who assist them in achieving their goal of an amicable settlement.

ARBITRATION
Arbitration is a private court in which the parties agree to be bound by the decision of a neutral person who hears the parties’ presentations. Arbitration requires the parties’ agreement.

One may submit a matter to arbitration either through a contractual agreement to arbitrate signed before any dispute arose, or by an agreement to arbitrate reached after a dispute arises.

Arbitration, which may be binding or non-binding, is more formal than mediation. Each side literally has its 'day in court' and may present testimony and cross-examine parties and, sometimes, witnesses. Expert testimony is not required, with resulting substantial cost saving. Depending on the parties' agreement to arbitrator, the arbitrator may announce the result at the conclusion of the hearing or later, and this may be with or without an explanation of the decision.

Under federal and state law, the results of binding arbitration typically are enforceable by courts should a party fail to fulfill its promise to comply with the arbitrator's ruling. Non-binding arbitration often persuades parties to settle, since they have had the opportunity to make their best case in a neutral forum.

Parties can define the issues they wish to be determined. Liability and damages (or other relief) may be heard, as may apportionment or other questions.

There are many possible variations which may be applied in arbitration. Summit Solutions will help define an individualize approach which the parties believe will best serve their needs.

An example of a traditional and often successful arbitration technique, used if the parties want definite closure and maximum risk protection is 'high/low' arbitration. This method simultaneously assures the plaintiff/claimant at least a pre-determined amount and protects the respondent/defendant from exposure above a pre-determined amount. The high and low figures are never disclosed to the arbitrator. If the award is between the high and low figures, the award stands. If it is below the 'low' or above the 'high,' the pre-determined protective figures govern.

Arbitration is private and without a record, so that the parties are assured against public disclosure of the results.

Cases already in court can be removed from the trial calendar to permit arbitration to take place.

MINI-TRIAL
Parties may be most comfortable with an expanded opportunity to present their case through a 'mini-trial' in which all needed witnesses either testify in person or submit affidavits or narrative statements. Cross-examination is available. The presiding judge works with the parties to ensure a complete but expedited presentation, with relaxed evidentiary rules and other special time-saving techniques. Even the most complex cases may take only one to three days to present. A decision can be made either with or without an explanation.

A mini-trial may be used to 'test out' how a neutral would rule, thus supporting the parties' separate negotiation efforts, or it may be used as a form of binding arbitration, with the parties' agreement to accept the results.