By Jill Pilgrim, Esq.
As a long-time proponent of alternative dispute resolution (ADR) – mediation or arbitration – I was not surprised to see the headline “Why Are Filings Falling? Civil Lawsuits Down 17 Percent in 10 Years” in the National Law Journal, March 12, 2015. It can be argued that the United States’ courts are not in fact open to all; they are open to those who can afford to hire an attorney or find one who will pursue her or his case for free – pro bono – or on a contingency basis; collecting legal fees if the case is won. No doubt the fact that pro bono, contingency fee and charitable legal service lawyers even exist here make access to the judicial system more open in America than anywhere else. However, in thirty years of practicing law, I have observed countless individuals with valid legal claims unable to obtain justice because they could not afford to hire an attorney or find one to assist them pro bono. Thus, representation unavailable equals access denied and justice denied.
There is another way. When done properly, mediation and arbitration provide much expanded access to justice for the masses than does the U.S. judicial system. In my opinion, in order to do mediation or arbitration correctly, it must, at a minimum, ensure that the process is clear, the parties agree to and understand the procedure, administration of the process is conducted fairly and impartially, and the decision-makers are neutral, thorough, diligent and attentive.
We all know that person who is a great mediator; the one among your friends and family who can go to each of the warring parties and “talk some sense” into them. A good mediator is that person who is trusted and can separately meet with each individual to a dispute, listen and offer an objective and common sense perspective. If the mediator can then bring all parties to the dispute to a mutually agreed outcome, the mediation effort is successful and everyone feels like their voice was heard.
A good arbitrator has different skills. Arbitration occurs when mediation breaks down and does not resolve the dispute. All parties can agree, in this instance, to allow a neutral third party (or panel of individuals) make the final decision regarding who is right or wrong in the disagreement. Arbitration is like having your own little judicial system, without the cost and other negative attributes; like publicly airing details of your grievances.
The key attribute of a good mediator or arbitrator is that she or he has no stake in the outcome of the controversy and has a reputation for honesty, integrity and being fair minded. This is the person who will cut through the #(%*#$#$#, get to the core of the matter, objectively assess the pros and cons, and tell the truth about where that comparison leads.
Having served as an arbitrator in financial, sports, and general business disputes over the past twenty years, and as an attorney for a party in business and sports arbitration, I have experienced the positive, time-saving, and cost saving outcomes of arbitration done well. As a corporate attorney, my daily interactions involve mediation either between individuals or constituencies within a clients’ company, or on behalf of a client against an adversary.
One final reason to choose ADR over the judicial system is because it is typically private and confidential; unlike a lawsuit which when filed in the U.S. judicial system is available for public consumption.
I encourage you to embrace alternative dispute resolution when you can find an honest, reliable, objective and competent mediator or arbitrator at a reasonable price. Here are some resources for you:
Co-op & Condo Dispute Resolution Services℠
JAMS
Association of the Bar of the City of New York
American Arbitration Association