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   FREQUENTLY ASKED QUESTIONS ~

 Alternative Dispute Resolution FAQ

Mediation FAQ

Arbitration FAQ

 

Arbitration FAQ

 What Is Arbitration?

Arbitration is an Alternative Dispute Resolution process whereby a person chosen as the arbitrator resolves the disagreement between parties. Arbitration is similar to a court trial, with several exceptions: 

1) The arbitrator (or panel of arbitrators) make(s) the decision called an "arbitration award: 

 2) The arbitration does not take place in a courtroom. 

 3) The arbitration award is binding. With rare exceptions, there is no right to appeal. 

 4) Arbitration is not a matter of public record. The proceedings are private and confidential. Generally there is not a court reporter or written transcripts. 

 5) Discovery or the process by which lawyers generally prepare their cases is extremely limited and subject to agreed upon guidelines. 

 6) The rules of evidence are relaxed so that the parties have a broader scope, more expanded opportunity to tell their stories; 

 7) With very few exceptions, it is much less expensive than legal litigation. 

 8) An arbitration time frame is substantially less than that of litigation and going to trial. 

 9) No jury. The Arbitrator(s) maintain neutrality and conflicts of interests. 

 10) Generally, all paperwork and evidence presented are destroyed after the Arbitration. 

 11) The Arbitration and Arbitration Award does not have to adhere to Judicial Case precedent nor formality of traditional court proceedings.

 What Is The Difference Between Mediation And Arbitration?

Mediation is a voluntary alternative dispute resolution process. All parties must consent to participate in good faith and work toward a mutually agreeable resolution. Mediating parties are not bound to resolve their dispute. However once a resolution is reached, it can be made binding if the parties decide to draft a contract called a settlement agreement. Mediations are not "decided" in favor of one party or another; rather, the mediator simply facilitates the negotiation process. The parties decide their own outcome. 

Arbitration is a non-voluntary alternative dispute resolution process. Unlike mediation, a knowledgeable, independent, and impartial third party is empowered to make a decision. The arbitrator hears the disagreement between one or more parties and after considering all relevant information renders a final decision in favor of one of the parties. Arbitration decisions may be either binding or non-binding, depending on the terms of the arbitration agreement. Binding arbitration decisions may be confirmed by a court and carry the same significance as a court judgment. 

 Why Use Arbitration Over Legal Litigation?

Arbitration is generally less expensive than legal litigation and provides for faster resolution through flexible scheduling and simpler rules. Arbitration results are confidential, only made public with the consent of the parties involved. 

 How Is Arbitration Different From A Trial?

The outcome of a trial can usually be appealed. Arbitration usually cannot be appealed. Arbitration is usually less formal than a trial. The rules of evidence may or may not be followed, depending on what guidelines the parties agree to. An arbitrator can be more flexible than a judge, because before the arbitration begins, both sides can agree to what guidelines and structure the arbitrator is to consider and follow in rendering the ‘arbitration award’.

 What Types Of Disputes Can Be Arbitrated?

Any type of disagreement can be arbitrated, including contract disputes involving businesses and consumers, domain name disputes, employment claims, real estate and construction issues, and tort and civil rights matters. Generally, arbitration is utilized when there is some sort of adversarial situation and continuing an amicable relationship is not a top priority.

 What Are The Benefits Of Arbitration?

 The advantages of arbitration include:

 - Timely resolution and closure to complex issues 

 - Lower costs than litigation 

 - Privacy and confidentiality of issues and parties 

 - Quick process avoiding court back-logs 

 - Parties maintain more control over the proceedings than litigation 

 - Opportunities for Parties to express their interests without objections 

 - Limited case precedent and legal procedures 

 - Ability to select arbitrator(s) 

 Do I Need A Lawyer?

Although it is more informal than court trial, arbitration is an adversarial process. You do not need a lawyer, however it is advisable to retain one since the process is adversarial and binding. The expenses of retaining a lawyer is assumed by each party unless there are provisions agreed to prior to arbitration. Each party will be required to present their position and interest by calling witnesses and presenting documentary evidence, and making arguments to persuade the arbitrator to rule in its favor. 

 Who Pays The Arbitration Cost?

The cost will vary depending on the arbitrator’s fee, the complexity of the case, and the length of the arbitration. Arbitrator(s) or Arbitration Association will charge the parties for pre-hearing conferences and review of documents, as well as time spent preparing the award. There may be an administrative expense if the parties go through an Arbitration Association. The arbitration award the amount of the judgment, and/or other costs to each party. 

 How Long Does Arbitration Last?

It usually takes several weeks to months for parties to do the necessary discovery and other research to prepare for the arbitration hearing. The arbitration hearing itself will last anywhere from one day to a week. Generally the more complex the issues are, the longer an arbitration hearing will take.

 Do I Give Up Any Rights By Agreeing To Binding Arbitration?

Generally you give up the constitutional right to have your disagreement decided in court of law by a judge or a jury in the court system. Under a few limited circumstances, such as after-discovered bias on the part of the arbitrator, arbitrary and capricious decisions, or newly-discovered evidence, a party may ask the court to reconsider or overturn an arbitrator’s decision. Most arbitration awards are binding. There are some exceptions, for example, in workplace matters. You do not give up the right to bring your claim before the EEOC, which may choose to pursue the matter on its own. 

 Who Serves As The Arbitrator?

The Arbitrator is an experienced person both parties agree to. The arbitrator takes the place of a judge and jury and listens to the facts presented by the parties, applies the relevant law, and determines the decision on an award. Individuals who serve as arbitrators typically possess certain qualifications or minimum levels of experience to maintain the integrity of the arbitration process. These individuals do not have to be from a legal background. Unlike a judge, arbitrators are paid by the parties, not by the government. A person who has served as a Mediator may not later serve as an Arbitrator, unless specifically agreed in writing by both parties. 

 How Do I Start The Arbitration Process?

If you have signed a contract already containing an arbitration clause, you should read and follow the requirements in the contract. Even though there may be an arbitration clause, this does not prevent both parties from utilizing mediation to settle their disagreement prior to arbitration. In mediation, both parties have control of the outcome whereas in arbitration an arbitrator makes a binding decision. Like litigation, arbitration may negatively impact an existing relationship. 

 Have Questions or Comments?

Please direct them to in our attention via email info@mediationJd.com. We will respond in timely fashion via email or website FAQ.