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