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Mediation is a process wherein the parties meet with a mutually selected neutral person, the mediator, who assists them in the negotiation of their differences. The mediator will attempt to get both parties to come to a negotiated settlement to resolve their dispute. A mediator will use their powers of persuasion to broker a settlement by encouraging both parties to compromise.
Mediation usually begins with a joint session to set an agenda, define the issue and determine the position of the parties. This allows the parties to organize the resolution process on an issue-by-issue or a group-by-group basis. This joint session is then followed by separate meetings between the mediator and each individual party and/or their counsel. This allows each side to confidentially explain and elaborate upon their position and mediation goals, and also gives the mediator an opportunity to ask questions.
Mediation can be used to resolve all types of family law issues, including both parenting and financial/property issues.
While engaged in mediation, a party cannot be forced to settle by the mediator, and by participating in the mediation process, a party does not give up their right to proceed with arbitration or trial if a settlement cannot be reached.
Arbitration is a process in which a neutral third party is selected to hear evidence and testimony presented by the parties. The arbitrator considers the evidence and then renders a decision that ultimately equates to a judgment received in a court proceeding (subject to a de novo hearing by the Court). The use of arbitration can be by agreement of the parties, court ordered, and/or is oftentimes required by the terms of a contract entered into by the parties, such as a listing agreement, purchase agreement, or employment contract. The terms of the contract may also usually specify the number of arbitrators, the rules and procedures that will apply to the arbitration, and the circumstances, if any, under which the parties may opt out of arbitration.
There are many benefits to arbitration that include; time efficiency, decisions are commonly rendered much more timely than through the courts, flexibility in the structure of the presentation of evidence, selection of the arbitrator, and can provide for increased confidentiality.
Arbitration also comes with potential downfalls. The fee for the arbitrator is an added expenses to the case (although some may argue that the timeliness of the decision combats this downfall). Unless the parties are granted a de novo review, there is limited rights of review and appeal.
Contact Burnham Law today to discuss the mediation and arbitration services we offer to our communities.