ADR in Delaware
As a Delaware attorney, I frequently advise my clients about the benefits of alternate dispute resolution (ADR). Arbitration and mediation are the two most popular forms of ADR, but there’s a major difference between the two. With arbitration, a third party hears the facts as if he were a judge, and he decides who wins, who loses, and how much money, if any, is owed. With mediation, the third party makes no decisions about who wins and who loses. Instead, the mediator’s role is help the parties settle their dispute. It's been my experience that Delaware attorneys and their clients are generally very satisfied with ADR.
Mediation
Mediation is an informal process. The two sides who have a dispute meet with a mediator (a neutral third party), discuss what happened and how they would like to see the situation resolved. The mediator is usually a lawyer or a retired judge, and his job is to help the parties resolve their dispute. Mediation doesn’t mean you lose the right to go to trial. If the dispute isn’t resolved through mediation, your case follows the normal process.
Mediation usually begins with both sides and their lawyers in the same room. They take turns telling their story to the mediator. The mediator sometimes asks questions to make sure he understands what’s been said. At this point, the joint meeting ends, and the mediator separates the two sides by putting them in separate rooms. The mediator then talks to each side privately in an attempt to learn more information and to explore the possibility of reaching a settlement. Armed with this information, the mediator then meets with the other side and goes through the same process. It’s not unusual for a mediator to go back and forth between the two rooms numerous times. If mediation is successful, the case is over. If it’s not successful, the litigation process continues as both sides prepare for trial.
The benefits of mediation include: (1) The two sides reach a mutually agreed upon resolution of their dispute as opposed to having a decision made by someone else (a judge, a jury or an arbitrator) imposed upon them; (2) Mediation is less costly than going to trial; (3) You can get your case in front of a mediator quickly, thereby avoiding a long wait for trial; (4) There are times when the two sides to a dispute are able to continue to do business with one another after they have reached a mutually agreeable resolution
Arbitration
Arbitration is also an informal process which, in some respects, proceeds like a trial. Both sides attend a hearing accompanied by their attorneys. Instead of a judge and a jury, the decision maker is a neutral arbitrator. When both sides can agree, sometimes there’s only one arbitrator. When both sides can’t agree, each side chooses one arbitrator, and the two arbitrators choose a third.
All of the exhibits are submitted in advance to the arbitrator(s). The hearing usually begins with the arbitrator(s) laying down some ground rules. The plaintiff’s side goes first. Witness testimony is given, and as each witness finishes his testimony, the other side gets to cross examine him. After all of the evidence has been presented, each attorney gives a brief closing argument.
The entire hearing is much shorter than a trial. The attorneys don’t have to educate the arbitrators as would be the case if there were jurors. The rules of evidence are relaxed. The written reports of expert witnesses can be used in lieu of having the experts come in and testify. What might take a week of trial can often be presented in less than a day. Therefore, the cost in terms of time and money is greatly reduced.
At the conclusion of the hearing, the arbitrators usually say that they will announce their decision in a few days. Unless the parties agreed to binding arbitration in advance, their decision is not binding , and so either party who is not satisfied with the decision can require that the case go to trial.
