Alternative Dispute Resolutions

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Alternative Dispute Resolutions by Mind Map: Alternative Dispute Resolutions

1. Mediation

1.1. Advantages

1.1.1. Inexpensive

1.1.1.1. Mediation is Voluntary Conflict Resolution

1.1.1.2. Court Trials from beginning to end are lengthy and very expensive.

1.1.2. Speed

1.1.2.1. Relatively Swift

1.1.2.2. Not affected by congested court schedules

1.1.2.3. Mediation sessions can be easily scheduled, with a variety of time and location options, upon agreement of both parties and the mediator

1.1.3. Simple Procedures

1.1.3.1. No complex procedural or evidentiary rules

1.1.3.2. General rule of fairness applies

1.1.3.3. Maximum penalty, walk away from mediation and take chances in court

1.1.4. Flexible

1.1.4.1. Allows parties to revise and adjust scope of conflict as circumstances change, making it easier to negotiate

1.1.4.2. Flexible Solutions and Settlements

1.1.5. Voluntary Mutual Agreements

1.2. Disadvantages

1.2.1. Risk: May not result in settlement agreement

1.2.1.1. May end up spending time and money, at the end needing to court either way for settlement if mediation fails.

1.2.1.2. If conflict moves forward to court, no surprise effect since "ammunition" exposed already to other party

1.2.2. Lacks State and Federal Procedural & Constitutional Protections

1.2.2.1. Lack of formality can be benefit, but can also be detriment.

1.2.2.2. May result in inequitable settlement as the less-well positioned party is over whelmed and unprotected.

1.2.3. Legal Precedents Can't be Set

1.2.3.1. Can't set new legal precedent, which has broader social impact on other legal cases

1.2.3.2. Not beneficial to other similar cases

1.2.4. No Formal Discovery Process

1.2.4.1. No disclosure of what the other party is presenting (information), to be fully prepared for case.

1.2.4.2. Party seeking disclosure must rely on the other party's good faith of information

2. Mediator Qualifications (For Location: Tulare, California)

2.1. Legal Education and Training: Licensed to Practice Law in the State of California

2.2. Mediation Training: 40 Hours Mediation Training

2.2.1. 32 hours of the 40 training hours must include: 1. Conflict, communication, and mediation theory 2.Stages of Medication Process 3. Mediation & Communication Skills & Techniques 3. Mediator Ethics 4.Law Governing Mediation, including Medication Confidentiality 5. Observation of of Mediation Demonstrations & Participation in role-playing.

2.2.2. Must also include: 1. Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases 2. Cultural and Gender Issues in Mediation 3. Issues concerning the role of mediators in preparation of mediated agreements.

2.3. Mediation Experience

2.3.1. After Completing 40 hours of training, potential mediators without prior experience must complete 2 Meditations of at least 2 hours in length

2.4. References

2.5. Continue Eligibility

2.6. Reviews

3. Arbitration

3.1. Advantages

3.1.1. Cost

3.1.1.1. Less expensive than litigation

3.1.2. Speed

3.1.2.1. Less costly than litigation due to process being quicker and less complicated than trial by court

3.1.2.2. Arbitrators do not usually over-loaded with case loads, resulting in quicker final decisions

3.1.3. Fairness

3.1.3.1. No single party controls arbitrator

3.1.3.2. Both parties mutually agree on selected arbitrator or third party arbitration service

3.1.4. Finality

3.1.4.1. For the most part, arbitration decisions are final

3.1.4.2. Appeal Process very difficult and Reversed Arbitration decisions are rare

3.1.5. Simplified Rules of Evidence and Procedures

3.1.5.1. Convoluted rules of evidence, delay tactics and procedure do not apply in these proceedings

3.1.5.2. Disclosures, as to who will be called as witness and documents produced are handled with phone call in good faith

3.1.6. Confidential

3.1.6.1. Proceedings normally held in private, not in open court.

3.1.6.2. Parties can agree to keep final resolution confidential.

3.1.6.3. Transcripts are not part of public record

3.2. Disadvantages

3.2.1. Cost

3.2.1.1. Arbitration can vary in complexity. Some parties hire attorneys/lawyers.

3.2.1.2. Arbitration final decision can be "binding" or "non-binding", were parties take issue to court, adding to cost of litigation

3.2.1.3. Arbitration costs are increasing

3.2.2. Limited Resources

3.2.2.1. For the most part, binding arbitration final decision are final, even if it's obvious arbitrator made mistakes. Appeals are very made to be very difficult and rare. Therefore, even if unfair, may be stuck and barred from taking claim to court .

3.2.3. Fairness

3.2.3.1. Uneven playing field in "Take it or Leave it" nature of arbitration clauses, sometimes working in the favor of large companies when challenged by someone of less money & power

3.2.3.2. Companies favoring arbitration may become familiar with certain arbitrators

3.2.4. Lack of Transparency

3.2.4.1. Not held in open court room, therefore private.

3.2.4.2. Arbitration decisions and transcripts are not public record

3.2.4.3. Decisions rarely reviewed by courts

4. Arbitrator Qualifications

4.1. Qualifications per AAA National Roster of Arbitrators

4.1.1. A

4.1.1.1. Minimum of 10 years Senior level business or Professional experience or legal practice

4.1.2. B

4.1.2.1. Educational Degree and/or professional license appropriate to field of expertise

4.1.3. C

4.1.3.1. Honors, awards & citations indicating leadership in your field

4.1.4. D

4.1.4.1. Training or experience in arbitration and/or other forms of dispute resolution

4.1.5. E

4.1.5.1. Membership in Professional Association(s)

4.1.6. F

4.1.6.1. Other Relevant Experience or Accomplishments (eg: Published Articles)

4.2. Neutrality

4.2.1. Ability to freedom of bias and prejudice

4.2.2. Ability to evaluate and apply legal, business, or trade principles

4.3. Judicial Capacity

4.4. Reputation

4.4.1. Held in Highest Regard by peers for Integrity, Fairness and Good Judgement

4.4.2. Dedicated to upholding AAA Code of Ethics for Arbitration

4.5. Commitment to ADR Process

4.6. Letters of Recommendation

4.7. Personal Letter