| Many who confront the legal system for the | | | | arbitrator's findings) however, there are |
| first time, voluntarily or involuntarily, are | | | | often penalties imposed on the party |
| faced with having to decide the forum in | | | | requesting the trial de novo if he or she |
| which their dispute will be resolved. In some | | | | does not achieve a better result in trial |
| instances, the forum in which a dispute will | | | | than achieved in arbitration. Private |
| be resolved has been pre-selected by the | | | | organizations like AAA, JAMS, Judicate West, |
| parties however, more often than not, | | | | and IVAMS similarly offer arbitration |
| litigants will make their forum selection | | | | services. The cost is similarly based on an |
| only after a dispute has actually arisen. It | | | | hourly rate or half or full-day basis. |
| is therefore important to have an | | | | |
| understanding of the difference between | | | | In advance of arbitration, with all sides |
| mediation, arbitration and trial and the | | | | usually represented by counsel because |
| benefits and drawbacks of each. Often times, | | | | arbitration is an adversarial proceeding, the |
| the forum selected will dictate how quickly | | | | arbitrator will be provided briefs detailing |
| and effectively the dispute is resolved. | | | | the positions, arguments and demands of each |
| | | | side. The rules of evidence in arbitration |
| Mediation is a voluntary process wherein two | | | | proceedings are quite liberal. As such, |
| or more parties to a dispute try to resolve | | | | documents and other writings that might be |
| their differences with the assistance of a | | | | excluded from evidence in a trial will be |
| neutral, disinterested third party such as an | | | | received and considered in arbitration. |
| attorney or retired judge. In most instances, | | | | Arbitration will proceed in whatever fashion |
| the cost of the mediator is shared equally | | | | the parties desire. This may mean evidence is |
| however, this is not always the case, | | | | introduced through the admission of exhibits |
| especially where one party has an interest in | | | | and by way of live or recorded testimony or |
| seeing the matter resolve and offers to pay | | | | simply by way of offer of proof (usually an |
| for the mediation in order to entice the | | | | attorney explaining what the evidence is). |
| other party to attend and partake. These | | | | The proceeding is much more formal that a |
| days, there are numerous private mediation | | | | mediation and, as above, is adversarial in |
| centers including, but not limited to, at | | | | nature. Once all the evidence is received, |
| least in the Southern California area, AAA, | | | | the arbitrator will usually take the matter |
| JAMS, Judicate West, and IVAMS. The cost of | | | | under submission and render an opinion and/or |
| retaining a mediator to assist in resolving | | | | issue an award shortly thereafter. This |
| your dispute will vary depending on such | | | | opinion or award is final and may only, under |
| factors as the experience level of the | | | | very limited circumstances, be challenged or |
| mediator, how busy he or she may be, the | | | | appealed. |
| nature of your dispute, the complexity of the | | | | |
| issues presented, and the number of involved | | | | Arbitration proceedings are usually |
| parties. Most private mediation centers bill | | | | considerably shorter than a trial and will |
| for their mediator's time on an hourly basis | | | | often be less expensive though that is not |
| however, others bill a flat fee for a half or | | | | always the case. The major drawback to |
| full day. | | | | arbitration is that you have trusted the |
| | | | outcome of your case to a single trier of |
| Mediation is not, like arbitration or trial, | | | | fact giving up your right to a jury. This may |
| adversarial in nature. As such, parties to a | | | | be fine in some cases however, where passion |
| dispute can mediate their differences without | | | | and prejudice may play a role in how the case |
| counsel. Anything said during mediation is | | | | is decided, it may be advantageous to you, |
| inadmissible in court. Thus, it is not | | | | depending on which side of the case you are |
| uncommon to see parties who partake in a | | | | on, to try the case to a jury of twelve. |
| mediation sitting together in a conference | | | | |
| room and, with the assistance of the | | | | Trial is what we most frequently see on TV. |
| mediator, working toward identifying the | | | | It is the subject of virtually every hit |
| contested issues and then brain storming to | | | | crime drama of our time from "LA Law" to |
| resolve them. Mediation is a give and take | | | | "Boston Legal" to "Law & Order". In the |
| process where there is no declared winner and | | | | absence of a plea agreement, trial is where |
| no declared loser. For mediation to be | | | | virtually all criminal cases are adjudicated. |
| successful, each side must give up something. | | | | In the civil arena, trials are less frequent. |
| Mediation is non-binding unless the parties | | | | In fact, most, upward of 90%-95% of all |
| agree to be bound by whatever result is | | | | litigated civil disputes settle in advance of |
| achieved. Mediation is favored and | | | | trial. Trial is risky as there is no way to |
| recommended in cases involving neighborly | | | | tell what a jury (should you chose to proceed |
| disputes, family disputes, or where parties | | | | by way of jury trial) will do with a case. |
| to a lawsuit involving a claim for monetary | | | | Simple things such as demeanor, appearance, |
| damages believe that with the intervention of | | | | accent, etc. can have a dramatic effect on |
| a neutral third party, a settlement can be | | | | how a jury views a case. If there is anything |
| achieved. Mediation is often the easiest and | | | | certain about a jury trial, it is the |
| most cost effective way to resolve disputes. | | | | uncertainty of the outcome. For that reason, |
| The major drawback to mediation is that if no | | | | at EISENBERG LAW GROUP we work hard to |
| resolution is achieved, the other side will, | | | | resolve disputes before trial. This is not to |
| by virtue of your disclosures in mediation, | | | | suggest that we at EISENBERG LAW GROUP avoid |
| have a better feel for what theories or | | | | or shy away from trial. Quite the opposite! |
| claims (and strengths and weaknesses thereof) | | | | Messrs. Day and Eisenberg have over 30-years |
| you might proffer in litigation. | | | | combined trial experience and a fabulously |
| | | | successful track record for favorable |
| Arbitration differs little from a bench trial | | | | outcomes. Trials however, are expensive and |
| (a trial in which the judge serves as trier | | | | carry with them not only the uncertainly |
| of fact as opposed to a jury fulfilling that | | | | referenced, but the risk of appeal which, at |
| role). Arbitration may be binding or | | | | present, can tie a matter up for 2 ½ |
| non-binding. Binding arbitration is usually | | | | years. In addition, trials can be long and |
| by agreement of the parties with each | | | | drawn out. Many judges only hold trial 3-days |
| expressing, in a writing, a willingness and | | | | a week which means a 5-day trial with jury |
| commitment to be bound by whatever decision | | | | selection and deliberation can last 2-weeks |
| the arbitrator may reach. Non-binding | | | | or more. For these reasons, we at EISENBERG |
| arbitration affords the losing party the | | | | LAW GROUP consider use of all available |
| opportunity to seek a trial de novo (a trial | | | | forums for resolving your dispute placing |
| on the merits without regard to the | | | | your interests above all else. |