| Many who confront the legal system for the | | | | achieved in arbitration. Privateorganizations |
| first time, voluntarily orinvoluntarily, are | | | | like AAA, JAMS, Judicate West, and IVAMS |
| faced with having to decide the forum in | | | | similarly offerarbitration services. The cost |
| which theirdispute will be resolved. In some | | | | is similarly based on an hourly rate orhalf |
| instances, the forum in which adispute will | | | | or full-day basis. |
| be resolved has been pre-selected by the | | | | |
| parties however,more often than not, | | | | In advance of arbitration, with all sides |
| litigants will make their forum selection | | | | usually represented bycounsel because |
| onlyafter a dispute has actually arisen. It | | | | arbitration is an adversarial proceeding, |
| is therefore important to havean | | | | thearbitrator will be provided briefs |
| understanding of the difference between | | | | detailing the positions, argumentsand demands |
| mediation, arbitration andtrial and the | | | | of each side. The rules of evidence in |
| benefits and drawbacks of each. Often times, | | | | arbitrationproceedings are quite liberal. As |
| the forumselected will dictate how quickly | | | | such, documents and other writingsthat might |
| and effectively the dispute isresolved. | | | | be excluded from evidence in a trial will be |
| | | | received andconsidered in arbitration. |
| Mediation is a voluntary process wherein two | | | | Arbitration will proceed in whatever |
| or more parties to a disputetry to resolve | | | | fashionthe parties desire. This may mean |
| their differences with the assistance of a | | | | evidence is introduced through theadmission |
| neutral, disinterestedthird party such as an | | | | of exhibits and by way of live or recorded |
| attorney or retired judge. In most instances, | | | | testimony orsimply by way of offer of proof |
| the costof the mediator is shared equally | | | | (usually an attorney explaining whatthe |
| however, this is not always the case, | | | | evidence is). The proceeding is much more |
| especiallywhere one party has an interest in | | | | formal that a mediationand, as above, is |
| seeing the matter resolve and offers to pay | | | | adversarial in nature. Once all the evidence |
| forthe mediation in order to entice the other | | | | isreceived, the arbitrator will usually take |
| party to attend and partake. These days,there | | | | the matter under submissionand render an |
| are numerous private mediation centers | | | | opinion and/or issue an award shortly |
| including, but not limited to, at leastin the | | | | thereafter. Thisopinion or award is final and |
| Southern California area, AAA, JAMS, Judicate | | | | may only, under very limitedcircumstances, be |
| West, and IVAMS. The costof retaining a | | | | challenged or appealed. |
| mediator to assist in resolving your dispute | | | | |
| will vary dependingon such factors as the | | | | Arbitration proceedings are usually |
| experience level of the mediator, how busy he | | | | considerably shorter than a trialand will |
| or shemay be, the nature of your dispute, the | | | | often be less expensive though that is not |
| complexity of the issues presented, andthe | | | | always the case. |
| number of involved parties. Most private | | | | |
| mediation centers bill for theirmediator's | | | | The major drawback to arbitration is that you |
| time on an hourly basis however, others bill | | | | have trusted the outcomeof your case to a |
| a flat fee for a half orfull day. | | | | single trier of fact giving up your right to |
| | | | a jury. |
| Mediation is not, like arbitration or trial, | | | | |
| adversarial in nature. Assuch, parties to a | | | | This may be fine in some cases however, where |
| dispute can mediate their differences | | | | passion and prejudice mayplay a role in how |
| withoutcounsel. Anything said during | | | | the case is decided, it may be advantageous |
| mediation is inadmissible in court. Thus,it | | | | to you,depending on which side of the case |
| is not uncommon to see parties who partake in | | | | you are on, to try the case to ajury of |
| a mediation sittingtogether in a conference | | | | twelve. |
| room and, with the assistance of the | | | | |
| mediator,working toward identifying the | | | | Trial is what we most frequently see on TV. |
| contested issues and then brain stormingto | | | | It is the subject ofvirtually every hit crime |
| resolve them. Mediation is a give and take | | | | drama of our time from "LA Law" to "Boston |
| process where there is nodeclared winner and | | | | |
| no declared loser. For mediation to be | | | | Legal" to "Law & Order". In the absence |
| successful,each side must give up something. | | | | of a plea agreement, trialis where virtually |
| Mediation is non-binding unless theparties | | | | all criminal cases are adjudicated. In the |
| agree to be bound by whatever result is | | | | civilarena, trials are less frequent. In |
| achieved. Mediation isfavored and recommended | | | | fact, most, upward of 90%-95% ofall litigated |
| in cases involving neighborly disputes, | | | | civil disputes settle in advance of trial. |
| familydisputes, or where parties to a lawsuit | | | | Trial is riskyas there is no way to tell what |
| involving a claim for monetarydamages believe | | | | a jury (should you chose to proceed byway of |
| that with the intervention of a neutral third | | | | jury trial) will do with a case. Simple |
| party, asettlement can be achieved. Mediation | | | | things such as demeanor,appearance, accent, |
| is often the easiest and mostcost effective | | | | etc. can have a dramatic effect on how a jury |
| way to resolve disputes. The major drawback | | | | viewsa case. If there is anything certain |
| to mediationis that if no resolution is | | | | about a jury trial, it is theuncertainty of |
| achieved, the other side will, by virtue | | | | the outcome. For that reason, at EISENBERG |
| ofyour disclosures in mediation, have a | | | | LAW GROUP wework hard to resolve disputes |
| better feel for what theories orclaims (and | | | | before trial. This is not to suggest thatwe |
| strengths and weaknesses thereof) you might | | | | at EISENBERG LAW GROUP avoid or shy away from |
| proffer inlitigation. | | | | trial. Quite theopposite! Messrs. Day and |
| | | | Eisenberg have over 30-years combined |
| Arbitration differs little from a bench trial | | | | trialexperience and a fabulously successful |
| (a trial in which the judge servesas trier of | | | | track record for favorableoutcomes. Trials |
| fact as opposed to a jury fulfilling that | | | | however, are expensive and carry with them |
| role). Arbitrationmay be binding or | | | | not onlythe uncertainly referenced, but the |
| non-binding. Binding arbitration is usually | | | | risk of appeal which, at present,can tie a |
| byagreement of the parties with each | | | | matter up for 2 years. In addition, trials |
| expressing, in a writing, awillingness and | | | | can be long anddrawn out. Many judges only |
| commitment to be bound by whatever decision | | | | hold trial 3-days a week which means a |
| thearbitrator may reach. Non-binding | | | | |
| arbitration affords the losing partythe | | | | 5-day trial with jury selection and |
| opportunity to seek a trial de novo (a trial | | | | deliberation can last 2-weeks ormore. For |
| on the merits withoutregard to the | | | | these reasons, we at EISENBERG LAW GROUP |
| arbitrator's findings) however, there are | | | | consider use of allavailable forums for |
| often penaltiesimposed on the party | | | | resolving your dispute placing your |
| requesting the trial de novo if he or she | | | | interestsabove all else. |
| does notachieve a better result in trial than | | | | |