Mediation

Mediation is a process in which two or more people involved in a dispute come together to try to work out a solution to their problem with the help of a neutral third person.

Parties and their lawyers (or parties alone if they are not represented) meet with an impartial, neutral third person, known as the "mediator", who can serve as an objective facilitator and assist the parties to discuss their dispute and explore options for resolution.

Mediation sessions are confidential and private.

Arbitration

Arbitration is a process in which a neutral third person is selected by the parties, or possibly under the terms of an applicable contract, or with the assistance of the court to hear evidence and render a decision. 

The dispute is presented to and decided by the arbitrator whose decision may be binding or non-binding depending on the circumstances, agreement of the parties or contractual provisions.

Non-Binding Arbitration

A non-binding arbitration results in an advisory opinion that the parties are free to disregard.

Binding Arbitration

A binding arbitration leads to a decision that cannot be overturned except in extreme circumstances, such as fraud, misconduct of the arbitrator, or refusal to hear material evidence. 

A binding arbitration may be structured in various ways and the final decision of the arbitrator is limited accordingly.

1. "High-Low"

The parties may wish to agree on "high-low" parameters to define the extent of the arbitrator's decision. The parties know going into the arbitration the best and worst case scenarios, depending on their respective position.

If the arbitrator's decision exceeds the "high" set by the parties, then that "high" is the result and conversely, if the decision is below the "low", then the "low" resolves the case. The arbitrator is typically not advised of the parameters.

2. "Baseball"

In this format, utilized in the arbitration of professional baseball player contracts, the evidence is presented to the arbitrator after each side has informed the arbitrator what the party believes the result should be; the arbitrator must then choose one of those proposed results. The arbitrator cannot select another result or figure.

3. "Night Baseball"

This follows the same procedure as regular "baseball" although the parties submit their respective proposals in confidence to the arbitrator, in a sealed envelope or otherwise, after evidence is presented.

Early Neutral Evaluation

The attorneys, sometimes along with their clients, meet with a qualified neutral at an early stage in the litigation.

The neutral provides assistance in identifying important issues in the controversy and forming a discovery plan, including specific vehicles and time frames for completion, that is focused, hopefully comprehensive and efficient.

The neutral may also be asked by the parties and counsel to act as a discovery referee or special master and possibly to also serve as a mediator in subsequent settlement discussions.

Discovery Referee or Special Master

A neutral "manager" assists the parties and counsel move forward through procedural issues, pleading disputes, and discovery matters, in order to ultimately reach a mutually agreeable discovery plan. The neutral assists the parties and counsel to efficiently create a record for  as they move toward trial or some other forum.

Depending on how the referral is made, by stipulation of the parties or by Court order (or a combination) the decisions of the neutral may be binding on the parties or serve as recommendations to the Court. A special master is particularly useful in multi-party disputes such as construction litigation and commercial matters.