Authored by John Berge
As a litigation attorney, I have spent my career helping people resolve their disputes. The two primary goals in dispute resolution are to resolve the dispute in a manner that is acceptable to your client, and to do that as efficiently and cost-effectively as possible.
The two traditional means for resolving disputes are negotiation and litigation. However, these traditional methods can create problems. These include the time and cost involved since the court system is so slow, as well as the fact that some attorneys use the slow pace of the system to generate more fees for themselves. If it is likely that an issue involved in the dispute will be appealed by either side after completion of any trial, the appeal will extend the litigation process another year or two. Finally, depending on how the court of appeals resolves the issue, further litigation at the trial court level may be necessary after conclusion of the appeal. As a result of these problems, civil disputes being resolved through the circuit court system can, at times, take two to five years before the litigation has finally completed.
Various forms of alternative dispute resolution (“ADR”), including negotiation, mediation, and arbitration, have been developed to deal with the problems associated with traditional dispute resolution. The legal profession has embraced ADR as a possible avenue for the resolution of disputes without the necessity of proceeding through the circuit court system. In fact, when I attended Willamette University in the mid-eighties, Willamette instituted a required course which included all forms of ADR. During my 26 years in practice, I have found mediation and arbitration to be effective tools for resolving disputes without the necessity of completing litigation.
Mediation is a voluntary process whereby the disputing parties use a neutral mediator to assist them in negotiating a resolution. No party is bound to continue with the process should it seem unproductive. The mediator does not have authority to decide the dispute, only assist the parties in reaching an agreeable resolution. Mediation is not binding on any party to the process.
Arbitration is a binding process where all parties to the dispute agree to an arbitrator or, at times an arbitration panel consisting of three arbitrators, to resolve the dispute. The decision by the arbitrator(s) is final and cannot be appealed. Arbitrators are not required to follow the law, but usually do so in determining an appropriate resolution to the dispute.
The obvious benefits associated with mediation and arbitration are that a resolution can be obtained more quickly, at less cost, and all parties can move away from the dispute and proceed with their lives and business relationships. As a dispute resolution attorney, I strongly encourage my clients to consider mediation and arbitration as possible avenues for resolution to avoid the time and costs associated with the traditional litigation system.