Alternative Dispute Resolution Services
At their most basic, mediation and arbitration are alternative means by which parties to what is, or what would be, litigation in the Courts, can resolve their disputes. As a mediator and arbitrator, attorney John R. Foley works with parties to understand and resolve their disputes. In a mediation, Mr. Foley applies his 34 years and wealth of practical firsthand experience and education to explain to parties the likely results of litigation and the benefits of settlement, and to help negotiate a fair and just agreed-upon settlement between the parties. As an arbitrator, Mr. Foley applies that same experience to make fair and just binding decisions on either specific case issues, or a complete resolution to a given dispute. Mr. Foley ensures that both parties are afforded the chance to explain their case in detail, and argue the merits of their claims and defenses, a setting that is far less formal and stressful that trial in Court.
In light of the current coronavirus pandemic and the mandate to stay at home and practice social distancing, JRFPC acted promptly to install and provide remote capabilities for mediation and arbitration. Through email, conference calls, and videoconferencing, the attorneys at JRFPC continue to provide full service mediation and arbitration for attorneys and their clients in southeastern Michigan.
Mediation (sometimes called “facilitation”) is an informal dispute settlement process. Mediation can be used in divorces, real estate, bankruptcy litigation, labor bargaining, and almost all forms of civil dispute.
Mediation is intended to bring two parties together to clear up misunderstandings, find out concerns, and reach a resolution. The process is voluntary, although it may be urged by the Court During the mediation, each side will present its view of the issue, and the mediator will work with each side in a caucus to attempt to work out a settlement. The mediation process, unlike arbitration, is non-binding; that is, the mediator does not impose a decision on the parties, but he/she attempts to present a solution that is acceptable to both parties.
There are two kinds of mediation: facilitative and evaluative.
Facilitative mediation is the simplest, least expensive, and most expeditious form of dispute resolution for relatively simple disputes without numerous separate issues. In a facilitative mediation at JRFPC, both parties submit confidential mediation summaries to the mediator, which are kept private and not shared with the other side or with the Court. The mediator then meets with the parties and their attorneys in a half-day or whole-day session, keeping each party separate from each other unless they choose to talk together. The mediator goes back and forth between the parties until either a resolution is reached or the mediator (or a party) declares an impasse. At the end of the mediation session, the mediator will record and circulate any binding agreement that the parties are able to reach. The mediator will offer a view of whether a party’s position is realistic, but otherwise remains neutral.
Evaluative mediation resembles facilitative mediation except that rather than remain neutral, the mediator will form and issue an opinion at the end of the mediation session. This written opinion is not binding on the parties unless they agree otherwise, but either party may submit it to the Court if they so choose.
Arbitration is the process of bringing a dispute before a disinterested third party (the “arbitrator”) for resolution. The arbitrator hears the evidence brought by both sides and makes a decision.
Arbitration is a more formal form of alternative dispute resolution (ADR) than mediation. It may be used in place of trial before a judge or jury so as to save the cost and time of going to court. Arbitration is binding just as a court order would be. Hearings are conducted on the record, following discovery protocols and rules of evidence as suggested by the arbitrator and agreed to by the parties.
Arbitration can be selected by parties for a portion of a case, such as how to divide personal property in a divorce case. Arbitration selected for a portion of a dispute is called limited issue arbitration. It is formal and binding, but it does not resolve the entirety of a case. Limited issue arbitration can also be limited for a period of time.
Full case arbitration occurs when the parties, whether by contract or after a controversy develops, agree to arbitrate their dispute instead of filing a lawsuit. The arbitration takes the place of a lawsuit and in many ways proceeds exactly as a lawsuit would except that it takes place in private. The parties can agree to confidentiality restrictions and other protections that are not always available in court. Indeed, a common reason to choose arbitration instead of litigation in the courts is the high degree of privacy the process allows. Arbitration can allow parties to avoid the public court system entirely.