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3 Styles of Mediation to Meet Your Needs

Mediation is often misunderstood as a dispute resolution process because it is a more flexible than either arbitration or litigation. It relies on a neutral party (a mediator) helping the opposing parties come to an agreement, instead of imposing a solution on them. How mediators work with the parties can vary significantly so it is useful to think about which mediation style may be best for a particular dispute. Parties who might have otherwise rejected mediation may find that using a different style of mediation may make all the difference in achieving a successful resolution.

Generally, there are 3 main styles of mediation:

  1. In facilitative mediation, the mediator does not make recommendations or give advice. He/she typically holds joint sessions with the parties asking them questions and engaging in a conversation to understand their point of view and interests. The mediator’s goal is to help the parties come to a resolution based on information and understanding. The mediator is skilled at facilitating discussions but may not have substantive knowledge or expertise in the type of dispute involved.
  2. This type of mediation is similar to discussions during settlement conferences before the parties go to trial. The mediator takes a more directed approach, advising the parties about the strengths and weaknesses of their case and making recommendations. He/she meets with the parties separately and may also meet with their attorneys separately. Mediators typically have relevant legal expertise in the area involved in the dispute and the parties’ attorneys are involved in picking an appropriate mediator.
  3. Transformative mediation goes beyond facilitative. The goal is to empower the parties to come to their own resolution. The mediator helps them recognize each other’s needs, interests, values and points of view. The parties control both the process and the outcome and the mediator follows their lead.

Depending on the circumstances of the dispute, the parties’ relationship and willingness to work together, one type of mediation may be preferable to another.

Many attorneys prefer evaluative because of the benefit of having a neutral party provide a fair assessment of each parties’ position and direct them to a solution. However, it has been criticized as too heavy-handed and coercive. Facilitative and transformative may give the parties more power to craft their own solution, but also may take longer and result in fewer agreements. However, this varies with the type of matter and parties. Each method can be useful in the right situation. Furthermore, there is a spectrum. Mediators may vary their style depending on the dispute or they may blend styles. The important point is that the parties should talk with a potential mediator to understand their general style, so they can make a choice that makes sense for them.

ARS provides the only complete end-to-end online ADR process for both mediation and arbitration. We offer a vast array of highly skilled neutrals to meet the needs of any party or dispute. To learn more, contact us for a consultation.




Choosing the Best ADR Option for Trust and Estate Disputes

Alternative dispute resolution (ADR) is a great option for addressing trust and estate disputes. In fact, the Father of Our Country, George Washington, chose to provide for ADR in his own will.[i]ADR has many benefits over litigation in resolving disputes including reduced costs, faster resolution, privacy, confidentiality, and informality when compared to litigation. ADR also offers more flexibility because the parties can select the type of ADR that best meets their needs.

Arbitration vs. Mediation in Trust and Estate Disputes

As discussed in a previous post, arbitration involves the submission of a dispute to an impartial third-party (known as the arbitrator) for binding resolution. It is an adjudicative process, which results in a decision subject to very limited judicial review of the outcome. The arbitrator’s power is in the ability to make a decision when the parties can’t come to an agreement.

Mediation also uses an impartial third party (the mediator), but it involves a solution-oriented process. The mediator acts as a facilitator and uses the power of persuasion to assist the parties in arriving at a mutually agreeable compromise. The mediator doesn’t issue any type of decision.

In the context of a trust and estate dispute, either method would resolve the matter, but the process and result could be significantly different. Mediation offers much more flexibility and creativity for resolving estate-related disputes than arbitration. For example, suppose a Will calls for the Testator’s sports memorabilia collection to be divided equally between his three adult children. If a dispute arose, a judge or arbitrator would likely impose an arbitrary equal allocation of the items among the surviving children. Or, the collection might be liquidated, with each child getting an equal share of the proceeds. A mediator, however, can be much more creative. He/She might facilitate a meeting to help the children agree on a fair way to divide up the collection, item by item. Things like emotional attachments could be considered. If one of parties is not a sports fan and could care less about the items, the mediator can suggest the two sports-fan children divide the collection and pay the third child the fair market value of the collection. In short, an arbitrator makes a decision, while a mediator will work with the disputing parties to build an agreeable resolution.

Depending on the circumstances of the dispute, the parties may want to pick one method over another. They could also attempt mediation as a first step and if it doesn’t work out, they are free to pursue arbitration or litigation.

Online ADR vs. In-Person ADR

Whether the parties choose arbitration or mediation, they also have the option to conduct their ADR entirely online or in-person. Online ADR offers additional advantages over in-person ADR including ease of use, 24/7 access, speed, convenience, and reduced cost.

ARS provides the only complete end-to-end online ADR process for both mediation and arbitration. To learn more about online ADR, read about ARS’ programs for individuals and businesses or contact us for a consultation.

 

[i]Last Will and Testament of George Washington: “My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants—each having the choice of one—and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.”

 




Arbitration vs. Mediation

What You Need to Know About Online Mediation

Mediation is a highly effective form of alternative dispute resolution (ADR). It is solution-oriented; focused on helping the parties reach a mutually agreed upon settlement of their disagreement. Many courts recognize the benefits of mediation and require parties to a business or consumer dispute to go through mediation before pursuing their claim in litigation. However, parties don’t need to wait for a court to require mediation. They can pursue it on their own, knowing that if it doesn’t work out (although 80% of cases settle), they are free to pursue their claim in court.

Mediation vs Arbitration

Mediation is a form of ADR in which a neutral third party (the mediator) works with the parties to actively find a solution that both sides agree to. It is strictly a settlement-oriented process where no one is forced into a settlement or any decision made by the mediator. The mediator acts as a facilitator and uses the power of persuasion to assist the parties in arriving at a mutually agreeable compromise.

Arbitrationis a type of alternative dispute resolution that involves the submission of a dispute to a third-party neutral (known as the arbitrator) for binding resolution. It is an adjudicative process, which results in a decision subject to limited judicial review of the outcome.

Mediators have a lot of flexibility to craft creative settlements that gives both parties something meaningful. In this way, both sides can win. An arbitrator’s power is in the ability to make a decision when the parties can’t come to an agreement, whereas a Mediator’s chief power is persuasion.

Both types of ADR have the advantages of reduced costs, faster resolution, privacy, confidentiality, and informality when compared to litigation.

Benefits of Online Mediation

Online mediation has all the advantages of traditional in-person mediation, but with added benefits resulting from operating in a virtual environment. Some of these include:

  1. Ease of use. Online ADR allows anyone to participate in mediation without formal training or legal representation.
  2. 24/7 access. Parties can upload documents from virtually any desktop or mobile device to a cloud-based service.
  3. Reduced time and money. Parties can save as much as 80 percent of the costs of traditional litigation in as little as 20 percent of the time.
  4. Convenience.Mediations are scheduled for the convenience of the participants which means no travel and simpler coordination of the parties.

Online Mediation Rules and Regulations

Anytime you anticipate working with an ADR provider, it is important to understand their processes. There should be written rules governing conduct of mediators, mediation procedures, confidentiality and privacy, termination of mediation and costs and fees. For example, see ARS’ Mediation Rules and Regulations.

To view ARS’ online mediation in action, see a video of a mock mediation.

Online mediation provides parties with a cost-effective and flexible method for resolving their dispute. ARS provides the only complete end-to-end online ADR process for both mediation and arbitration. Contact ARS to learn more about the benefits of online ADR.




Online ADR Security Best Practices

Many companies, law firms and individuals have been subject to major data security breaches in recent years. That’s why it’s important to always ensure the security of confidential information that is uploaded to and accessed on any website. In the context of online ADR security, there is a wealth of private information that needs to be protected. Before sharing anything online, you should follow these best practices:

  1. Ask the ADR provider if the site meets or exceeds industry security standards.The provider should have a secure cloud-based platform that meets or exceeds industry standard SSL encryption, so that no one may observe any details or evidence without being authorized. If an unauthorized user attempts to gain access to data, the account should be automatically locked and only able to be unlocked by the user by contacting the ADR provider.
  2. Use a strong password and protect it.If someone can guess or steal your password, then they can gain the same authorization that you have. You should use a combination of letters, numbers and symbols, including upper and lower-case letters. Don’t share or reuse passwords or use any recognizable words in the password.
  3. Log out of the system when you’re done.When you are finished accessing the website, log out fully. You should also disable allowing your browser to automatically remember your password. In this way, if someone accesses your physical computer, they cannot log in.
  4. Protect your computer.Any computers you use should have virus protection. It is also a good idea to keep your software updated by applying the latest service packs and patches. Also, never leave passwords on Post-it notes on your monitor or under your keyboard.
  5. Never use a public computer to access or send sensitive information. This practice is just asking for trouble. Enough said.
  6. Take care with email.A secure cloud-based platform can provide more security than many email systems. If you are conducting online ADR, it may be better to communicate with parties and arbitrators using the online system rather than sending documents via regular email.
  7. Find out how online evidence is Parties should be able to upload evidence to the platform to preserve e-mails, voicemails, photographs, witness statements, police reports, video or audio recordings, etc. and ensure that other parties with access can’t delete or make changes to it. For example, uploading evidence to the ARS secure server preserves metadata (e.g. notes and edits in Word; date and time of edits) to prevent spoliation (destruction of evidence and records).

Online ADR security is essential. ARS provides a secure cloud-based platform with the industry standard SSL encryption enabling parties to protect their information. Our system offers a convenient, fast and cost-effective solution for resolving claims. To learn more about our proprietary software, contact us for a consultation.




Comparing the Costs of Online ADR

Generally, ADR is significantly less expensive than litigation. However, the cost of ADR can quickly increase as ADR providers tack on additional fees and hourly charges. It may seem like there is no option but to pay these extra expenses, but online ADR provides the parties with more options to control and reduce their costs.

Types of Fees

Most ADR providers charge a myriad of fees for using their services. The amount varies depending on the size of the claim and the provider. These fees include:

  • Initial filing fee
  • Additional filing fees for responses, motions, hearing room rentals, postponements, etc.
  • Hourly charges for arbitrator/mediator compensation

ADR costs often rise because many ADR providers give arbitrators significant discretion in asking for additional documentation. This can allow arbitrators to bill for the extra time they put in above and beyond the hearing.

Other Costs

Other expenses typically associated with ADR include attorneys’ fees and travel (i.e., in-person hearings may require parties, witnesses and attorneys to travel). These costs may vary but can’t be eliminated with most ADR providers.

Complete Online ADR Solution

Online ADR can offer many advantages over traditional ADR. For instance, ARS’ Complete Online ADR (C-ODR) solution provides the parties with more flexibility in conducting their arbitration, including the ability to:

  • Eliminate hearings. ARS provides an option for arbitrations to be decided on the contentions and evidence submitted with no formal hearing. In those situations, the only fee is the initial filing fee.
  • Avoid in-person hearing travel. Where a hearing is requested by any party, the hearing may be conducted telephonically or by video-conference.
  • Reduce hearing costs. Where a hearing is requested, there is an hourly fee associated with the hearing time and nothing else. ARS rules do not provide the arbitrators with the authority or ability to engage in ongoing and billable activities.
  • Represent themselves. ARS does not require companies to be represented by counsel, which eliminates attorney fees for small businesses who may want to handle the matter themselves.

Parties considering ADR for their disputes should have a clear understanding of the costs and fees associated with the provider they are using. A provider should be completely transparent in its fee structure, giving parties the predictability and low cost they want. Read more about ARS’ fees or contact us for a consultation.




5 Easy Steps for Using Online ADR

Online dispute resolution may seem intimidating, but it’s really a very simple process. The advantage is in utilizing a system that is designed to walk applicants through each step.

Preconditions to filing

Before an application to arbitrate is filed, the parties must agree to submit the matter to binding arbitration or be required to arbitrate a dispute based on the terms and conditions of an agreement between the parties. In other words, if there is no written agreement to arbitrate, then both parties by federal and state law must consent to arbitration by the provider. The parties can select a specific ADR provider in their agreement. However, even where an existing written agreement specifies another method,venue or provider for dispute resolution, the parties can always later agree to make changes.

In addition to agreeing to submit to arbitration, if one of the parties previously filed a lawsuit, federal and state arbitration statutes require that the party dismiss the litigation.

ARS’ process

Anytime you are vetting an ADR provider, it’s important to understand how its application and dispute resolution process works. For ARS, it generally involves five basic steps:

Step 1: Set up an account. This is as simple as providing your name and e-mail address.

Step 2: Submit a Claim. The Applicant starts the process by submitting an Application that has their reasons for why the other party owes them money. The Respondent then submits a Response to ARS explaining why they don’t owe the Applicant any money. The Respondent’s Response may also include a claim for money against the Applicant, which is referred to as a counterclaim.

When the parties submit the Application and Response(s), they will have the opportunity to submit any proof which supports their position. This includes all relevant documents, photographs and other evidence. Simply upload the files to ARS’ secure server, describe the claim, and identify the responding party. Instructions on uploading evidence are available here.

Step 3: An Arbitrator or Mediator is Assigned. ARS Arbitrators are experienced litigation attorneys selected based upon their years of experience in various areas of the law. Before they are added to our panel of arbitrators, each potential Arbitrator is interviewed, and their qualifications are verified. Once placed on the panel they will only be assigned cases where their background shows a high level of expertise. Our computer randomly assigns cases to Arbitrators based on their strongest areas of knowledge. Before a matter is assigned to an Arbitrator, ARS also conducts a conflict check to make sure that the Arbitrator has no connection to the parties to ensure their neutrality.

Step 4: Provide information as needed. When a party needs to take action, the system gives them notification. On your personal arbitration management page, you will see a list of arbitrations to which you are a party. If the “Next Step” column contains a green button, it indicates that “the ball is in your court.” The presence of a green button means that you should click it, because there is an action you need to take for that particular arbitration to proceed. Clicking a green button on your personal arbitration management page does not immediately take that action, but rather displays the application with the appropriate green button(s) at the bottom of the page. You will need to fill out any required information then click the green buttons on the application to take the corresponding action. For arbitrations that are waiting on someone else, there will not be a green button, but rather a “View” link that will allow you to view the details of that arbitration.

Step 5: Resolve the Dispute. The arbitrator or mediator reviews feedback from the Applicant and Respondent(s). After all evidence is gathered and reviewed, a binding decision is rendered by the arbitrator. If using mediation, the mediator will attempt a resolution. Where permitted by ARS rules, the parties can request a telephonic hearing. If such a hearing is requested, the Arbitrator will make the decision after the hearing. If no telephonic hearing is requested a decision will be made based on the Application and Response(s) along with the evidence that has been submitted.

Parties should investigate their ADR options and feel comfortable with whatever provider they choose. A simple user-friendly process has many benefits. For more information on how ARS works, visit our FAQ page or contact us.




Arbitration Decision Appeals and Enforceability

Generally, arbitration decisions rendered in private arbitrations are final and binding, subject to very limited court review. There are four major grounds for challenging arbitration awards: fraud, arbitrator bias, arbitrator misconduct, or the arbitrators exceeding their authority. Absent these, decisions can be converted to enforceable judgments. Since appeal rights are so limited, disputes are resolved relatively quickly. However, this can leave a party with little remedy where they feel there are clear legal reasons to object. That’s where an online ADR process that incorporates a fast and affordable online appeal process can be a significant benefit to the parties.

Appeal Rights

The ability to have an arbitration decision reviewed in certain circumstances is important. ARS decisions are binding, but unlike many other ADR providers, ARS offers an Appeal process when one or more of the parties believes a decision is legally incorrect. Any party may file an appeal of the decision based on one of two reasons: (1) The Arbitrator used the wrong law or legal standard or (2) The Arbitrator used the correct legal standard but applied it incorrectly as to the facts of the case as determined by the Arbitrator. The non-appealing party has the right to respond. On appeal, the matter is referred to an Appellate Panel of online arbitrators who review the matter and render a decision either affirming the original decision or rendering a new one. The entire process is handled online quickly and efficiently.

Enforcement

Once a decision is rendered (or if applicable, a decision on appeal is rendered), payment of any ADR award of damages is due. If a party fails to pay as required by a decision, the award may be converted to judgment and then enforced by the courts. In that situation, as provided in ARS rules, the award against the non-paying party will be increased to cover the expenses incurred by the party who was not paid in converting the award to a judgment.

The finality and speed of arbitration is one of the main reasons that parties choose arbitration to resolve their disputes. However, the addition of an online appeal mechanism enables the parties to keep all the benefits of ADR while adding an extra level of protection against improper decisions.

ARS provides the only complete end-to-end online ADR process, including appeals. To learn more, visit ARS’ FAQ page or contact us for a consultation.

 




Hearings in the Online ADR World

Hearings are of course traditionally part of the ADR process and can be beneficial where live testimony is needed. However, many cases can be resolved with documentary evidence, such as contracts, police or accident reports, witness statements, photographs, estimates or receipts, and video or audio recordings. One of the disadvantages of traditional brick and mortar ADR is that not only are hearings required, but they are generally in-person, regardless of whether they offer any benefits to the parties.

Advantages of Using an Online Platform

Online ADR offers parties convenience and cost-savings. For instance, with ARS’ online platform, hearings are optional.[1]However, any party may request a telephonic or video conferenced hearing. If such a hearing is requested, the Arbitrator will render a decision after the hearing. If no telephonic hearing is requested a decision will be made based on the Application and Response(s) along with the evidence that has been submitted.

When the parties opt for a hearing, the benefit of an online platform is that hearings are scheduled for the convenience of the participants. It’s much easier to find a time when everyone is available. There is no need for travel; no waiting around in airports and spending time in hotels. In addition, it is simpler to arrange testimony of necessary witnesses, including eliminating some of the legal challenges to obtaining non-party witness testimony for an out of town hearing.

The process for scheduling is also simplified. Where any party requests either a telephonic or video conferenced hearing, ARS provides all parties with a brief online questionnaire allowing them to state days of the week and times which they prefer for hearings. This facilitates the process for selecting days and times which are convenient for all parties and eliminates numerous back and forth emails among the parties.

What Happens in a Hearing with Online ADR

After introductions are made, the Arbitrator (who will have already reviewed the file containing each party’s side of the matter) will start by giving his/her initial thoughts as to what he/she believes to be the facts. If needed, the Arbitrator will ask questions of the parties, so he/she can understand the facts more clearly. Then the Applicant and Respondent(s) will have the chance to explain why each believes their view of the dispute is correct. After the parties are finished, the Arbitrator will give the parties the chance to discuss the dispute between themselves for a few minutes to see if they can settle the claim. If they can’t, the Arbitrator will then end the hearing. Within sixty (60) days the Arbitrator will render a decision and the parties are notified.

When traditional brick and mortar ADR providers conduct hearings, the process often adds time and expense to the cost of ADR without looking at whether it benefits the parties. In a fully online environment, the parties have the option to proceed without a hearing and if they do want a hearing, it is a much more convenient and less costly option. ARS provides the only Complete Online ADR (C-ODR) solution. To learn more about how online ADR works, visit ARS’ FAQ page orcontact us for a consultation.

 

[1]And at least one court has held that there is no right to an in-person hearing. See State Farm Guaranty Insurance Co. v. Hereford Insurance Co., No. A-3749-16T3 (N.J. App. Div. Mar. 14, 2018): “If a hearing is allowed, nothing in the Act prohibits the hearing from being conducted telephonically. In addition, nothing in the Act requires that the hearing be at a physical location.”




Presenting Evidence in Your Online ADR matter

Many parties choose ADR because of the simplified rules of evidence and discovery. Typically, there are limits on the nature and scope of discovery and time limits on how long the process can take. Issues are handled through phone calls rather than multiple hearings, subpoenas, depositions, interrogatories and the like. And, the strict rules of evidence don’t apply. Notwithstanding this, the parties still must present evidence supporting their position. Online ADR makes this process simple.

Types of Evidence Required

Evidence includes anything you can use to prove your claim or to show that the other party’s position is wrong. The type of evidence can vary depending on the nature of the dispute. For example:

  • Vehicle Accident Claims:For claims arising out of vehicular accidents, evidence can include police or accident reports, witness statements (these are statements by someone or people other than the parties who saw the accident), photographs, estimates or receipts showing the damages to your vehicle. In addition, a party can also use any type of video or audio recording that he/she has taken at the time of the accident or to show the damage to the vehicle.
  • Business and Individual Matters or Disputes Between Businesses:For claims that arise out of contracts, evidence includes a copy of the agreement, in addition to witness statements, photographs, written documents showing the basis for the amount of money being sought in the Application or Counterclaim. If a hearing is requested, the parties may testify as well as any individuals with personal knowledge of the events involving the claim(s).

 

Uploading of Evidence to the Online Platform

In evaluating an online platform, ease of use is paramount. With ARS’ platform, all types of digital, audio or electronic data files can be easily uploaded and shared by the parties. Parties can upload evidence from virtually any desktop or mobile device to a cloud-based service to preserve e-mails, voicemails, photographs, witness statements, reports, video and audio recordings, etc. Once all the information is on the computer, the online platform provides simple instructions on how to upload evidence. Paper documents can be scanned or faxed to ARS. All evidence will appear in the evidence table and can be viewed anytime anyplace. The process is intended to be user-friendly for any party and doesn’t require use of an attorney.

Although traditional brick and mortar ADR providers simplify evidentiary procedures as compared to litigation, none provide a fully online environment. ARS provides the only Complete Online ADR (C-ODR) solution. To learn more about online ADR, read about ARS’ programs for individuals and businesses or contact us for a consultation.

 

 




How to Select an Arbitrator

An important benefit of arbitration is being able to select a neutral third-party with the relevant knowledge and experience needed to resolve your dispute. In traditional arbitration, there are several steps involved in picking an arbitrator, resulting in what can be a long process in many cases. However, Complete Online Dispute Resolution (“C-ODR”) can significantly improve your ability to get a high-quality arbitrator in a very efficient manner.

Arbitrator’s Qualifications

Parties looking to use arbitration should work with ADR providers who only use highly skilled and knowledgeable professionals. Ideally, their list of arbitrators should include former Judges, Magistrates, Administrative Hearing Officers and law school professors and others with in-depth expertise. These individuals should have experience in the relevant area of law, industry or type of claim.

Traditional Arbitrator Selection Process

Once you are working with an ADR provider, the provider will have its own method of assigning an arbitrator to your case. Typically, the organization provides a list of qualified arbitrators to the parties who then make a list of which ones are not acceptable and rank the ones who are acceptable. If the parties can’t agree on a qualified arbitrator, they may be forced to file a lawsuit so that a judge can choose the arbitrator.

When the parties can select their arbitrator with the “list” method, there is a risk that an arbitrator will “split the baby” when deciding cases to cull favor with the parties so they will be selected again on future matters. Although most arbitrators are fair and impartial, the “list” method does introduce a potential for biased decision-making.

Advantages of a Software Solution

Using software to select an arbitrator can provide the same quality assurances as the traditional arbitrator selection process without the downside. For instance, ARS’ proprietary algorithm selects the arbitrator based on their level of expertise for a specific matter. Before being added to the ARS panel of arbitrators, each potential Arbitrator is interviewed, and his/her qualifications are verified. Once placed on the panel, an arbitrator will only be assigned cases where his/her background shows a high level of expertise. The computer randomly assigns cases to arbitrators based on their strongest areas of knowledge. Since the software makes the selection based on the type of experience the parties need, there is no risk of bias. In addition, before a matter is assigned to an arbitrator, ARS also conducts a conflict check to make sure that the arbitrator has no connection to the parties to ensure their neutrality.

The selection of a fair and knowledgeable arbitrator is critical., but the process should not impose additional and unnecessary burdens on the parties. An online ADR provider that incorporates highly skilled arbitrators, sophisticated matching technology and conflicts checks offers a fast, cost-effective solution to choosing an arbitrator.

ARS provides the only complete end-to-end online ADR process. To learn more, visit ARS’ FAQ page or contact us for a consultation.