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