When I talk to folks about what mediation is, sometimes is easiest to explain what it is NOT first. I’m going to compare mediation to other forms of alternative dispute resolution.
- Although mediation can be used in disputes between parties who are involved in litigation, the mediator is not acting like a judge, making a decision.
- Unlike trial, there is no “testimony” that is heard or rules of evidence.
- Court decisions can be “appealed”, unlike mediated agreements.
- Litigation is not a voluntary process.
- Litigation can be an expensive process from the standpoint of attorneys’ fees and experts, if applicable.
- In the family law context, judges can make determinations on many (but not all) issues involving a divorce. For example, courts will not decide issues of pet visitation or will get involved in enforcing certain provisions that may be important to the parties.
- Arbitration and mediation are oftentimes confused. An arbitrator is more akin to a judge making a final determination.
- The parties can decide whether the arbitration is binding or
- Like a judge, an arbitrator will hear testimony and review evidence. In a sense, arbitration is a more casual form of litigation with relaxed rules of evidence.
- Unless the contract in dispute requires binding arbitration, arbitration is still a voluntary process.
- Arbitration decisions can be appealed and challenged in certain situations.
- Oftentimes parties will agree to use an arbitration organization such as the American Arbitration Association; however, the parties may use private arbitrators.
- Parties can choose whether to use a 1 party or 3 party arbitration panel of people who may or may not be lawyers or have specialized skillsets according to the practice areas.
- Arbitration is viewed as an expensive form of Alternative Dispute Resolution (“ADR”).
- In the family law context, families cannot arbitrate child custody and visitation (i.e., the allocation of parental responsibilities and parenting time).
Early Neutral Evaluation –
- This is a newer form of ADR with growing popularity in some geographic areas, depending on the type of dispute. You will see this more with matrimonial or commercial disputes.
- A Neutral Evaluator is usually a licensed attorney with several years of experience (e.g., 10+ years of experience or a retired judge) that is paid hourly much like an arbitrator.
- Like arbitration, Early Neutral Evaluation or “Neutral Evaluation”, focuses more on the economic issues with a dispute. In the family law context, it is unusual for a Neutral Evaluator to give opinions on custody and visitation.
- Like an arbitrator, after reviewing the facts and submissions from each side, the Neutral Evaluator will make a non-binding decision on how he or she feels a jurist will rule in a particular situation.
- This can be an effective, but not inexpensive tool, to break an impasse by getting a decision from a neutral third party. The parties may agree in writing to make this decision binding; however, the parties usually take this decision under advisement in settlement negotiations.
In the next blog, I will focus more on what mediation IS. I’m a huge fan of mediation. It’s an effective way to resolve disputes. I’m trained as a mediator for commercial disputes and family law mediation.