Civil ADR

Civil Alternative Dispute Resolution (ADR) is effective in resolving a wide array of civil disputes while ensuring confidentiality, including:

power meeting from above

  • Business
  • Commercial
  • Congregational
  • Construction
  • Consumer Protection
  • Contracts
  • Defamation
  • Discrimination
  • Employment
  • Family Business
  • Insurance
  • Intellectual Property
  • Partnership Issues
  • Personal injury
  • Property
  • Real estate
  • Workplace

 

 

 

 

 

 

Civil Dispute Resolution Methods

Mediation ^

Mediation is a client-centered approach of party self-determination, employing an interest-based approach.  Clients have their own sense of what is right, what is fair, and what will work for them; their own system of fairness.  The measure of a successful mediated resolution is one that is “do-able and durable.”

Mediation is a facilitative method, sometimes referred to as transformational, and is the most frequent ADR method.  The mediator works, collaboratively with the parties to reach an acceptable resolution to issues and concerns while providing unique focus for personal interests and needs.  The issues are explored respectfully, concerns are validated and the mediator assists in analyzing and exploring options and opportunities while maintaining a focused, respectful environment and avoiding non-productive divergences.  This process shifts from the litigation approach of positional bargaining.  The mediator lacks authority to impose terms or resolutions, but is trained in helping the participants to jointly make decisions in resolving their own dispute.

The mutually negotiated agreement is then transformed into a legally binding document.

Arbitration ^

Arbitration is an adjudicative approach where the parties present their case to a neutral third party or a panel of neutral third parties.  The neutral inquires and asks clarifying questions or requests the production of specific information/documentation, and ultimately, as agreed by the parties beforehand, will render a legally binding decision.  If the parties do not stipulate that the award or decision is legally binding, the award or decision is advisory in nature.  In the event that it is advisory in nature, any party may make a request for trial, de novo, in Minnesota District Court.

Ms. Eyal has a Certificate in Global Arbitration Law and Practice from the School of International Arbitration, Queen Mary University in London.

Comparison of the Mediation and Arbitration Models ^

Mediation (Facilitative) Arbitration (Adjudicative)
Guided negotiation. Adjudicated process.
Outcome is determined by the parties. Outcome is determined by the arbitrator.
Mediator lacks authority to impose a resolution. Arbitrator has the authority to impose a resolution; a legally binding decision.
Information is informally exchanged and focused. Discovery may be required.
Mediator focuses the parties to understand the issues from the other party’s perspective. An award/decision is rendered by the Arbitrator has all necessary facts.
Parties are able to engage in innovative solutions to reach agreement. Parties present their case, provide testimony and evidence.
Informal process with parties as active participants. A more formal process and attorneys largely control party participation.
Parties meet jointly and individually with their counsel. The format is more similar to an evidentiary hearing with no confidential communication with the arbitrator.
Outcome based on parties’ interests. Outcome based on testimony, facts, evidence and law.
A mutually acceptable resolution is reached, relationships are often preserved. Resolution follows the win/lose model and relationships are often lost.
Lower costs. Similar or more expensive than mediation but less expensive than traditional litigation.
Outcome remains private and confidential. Details are private but the decisions are publicly available.

Med / Arb ^

Med/Arb is a fusion of Mediation and Arbitration and is a hybrid style of ADR.  The parties enter into this resolution process, agreeing in advance that they will mediate, but if the dispute is not completely resolved through mediation, then the process will then proceed as an arbitration.  Often agreement is reached through mediation for some, but not all, of the disputed issues.  Thus, when arbitration begins, if agreed during the initial process ground rules, the focus of the arbitration will be narrowly focused on only the outstanding issues.

This allows the parties to self-determine the bulk of the agreement and to leave a third party to decide only a limited issue or set of issues.  Additionally, it provides strong incentive for more robust negotiation from the parties in the mediation phase and helps avoid reaching an impasse.

Neutral Fact Finding ^

Neutral Fact Finding is a process in which a neutral third party examines and analyzes factual disputes, as agreed to by the parties, followed by the issuance of subsequent findings.  The parties indicate the scope of the engagement and, unless specifically agreed to beforehand, the findings are advisory; not legally binding.

There may be instances where a subject expert, uniquely qualified to make a determination or recommendation in the case will necessitate a neutral in that subject area to fulfill a narrowly defined function.

This process is particularly effective when isolated information and scrutiny of a specific issue is sought, while avoiding the full Discovery process.

Moderated Settlement Conference/Non-Binding Advisory Opinion ^

A Moderated Settlement Conference/Non-Binding Advisory Opinions is a blended mediated, evaluative and non-adjudicative process intended to resolve outstanding issues for late-stage cases where Discovery has been completed, where other ADR methods have proved unsuccessful for all issues and trial appears imminent.  The parties can define the appropriate scope of the moderator’s role based on the case facts and details.

The conference is conducted with the parties’ presentations to the moderator, review of requested information/documentation and the information contained in the court file.  The moderator provides an opinion on the case and likely outcomes.  The moderator will then work with the parties to reach a mediated agreement on some or all of the remaining issues.

If full or partial agreements are reached, such agreements are generally read into the record before a judicial officer.  Agreements are legally binding.

If the case is not fully resolved, the agreements are read into the record and the moderator identifies the outstanding issues or matters that merit further examination.

Design Your Own ^

The parties and the unique details of a case may make an entirely tailored process desirable.  In such instances, a unique ADR process is articulated and detailed in a written agreement.  The tailored process will be followed.  Agreements reached through such methodology will include an explanation of the process in the Informational Statement filed with the court.

Online Dispute Resolution (ODR) ^

As technology has advanced and the geography and breadth of daily lives and work schedules have also expanded, the two can converge for optimal ease and effective resolution.

Through Skype and other video-conferencing tools, the electronic exchange of documents, conflicts can be resolved effectively, even when proximity cannot be achieved by all parties.

Any of the methods of ADR discussed previously can be incorporated in an ODR format.

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