Going to Court is rarely a great idea. Many feel that the lawyers are the only winners in a court battle. But what if you have a problem or dispute that you feel should have a legal remedy: Debt collection, landlord/tenant dispute, breach of contract, malpractice, fraud or misrepresentation ? If you do business in today's world, complex legal disputes are a constant concern.
There are a number of alternative dispute resolution techniques or procedures that are available to you as a business man/woman or a real estate professional to avoid a costly court fight with the time and expense of case preparation and presentation by a team of expensive lawyers and staff.
- Negotiation - the basic technique for all business situations - negotiate an agreement with the other side. The benefits are obvious: Little or no cost as you are negotiating on your own behalf in the normal course of business. Sometimes you may hire a professional negotiator, such as your attorney, to negotiate for you. If you are a real estate agent, your buyer or seller has, in effect, hired you to negotiate for him/her in the process of selling or purchasing a house.
- Mediation – The parties meet with an impartial, third party, neutral (may be a new use of the term for you: neutral is a person who is impartial) – or mediator - who will facilitate the process of reaching an agreement among the parties through a structured (but informal) process designed to bring the parties together to reach an agreement without the cost and formality of litigation. The mediator does not hear the evidence and then render a ruling. The parties decide to settle their dispute with terms agreeable to both of them – or not. The mediator tries to clear away the obstacles that created the dispute, to help the parties understand the strengths or weaknesses of both sides of the case and to help the parties find middle ground that can lead to a settlement agreeable to both parties. Attorneys may be used in case presentation depending on the value of the claim and the needs of the parties. Because mediation is a process of settlement – the discussions, offers and counter-offers which may arise in mediation are confidential and not admissible in any later court proceedings. Sometimes the terms of a mediated settlement may go beyond the limits of monetary compensation (usually the sole remedy available in Court) with creative solutions that might not have been possible in Court. A mediation settlement agreement may be filed with the Court by the parties as a stipulation which becomes the basis for the disposition of the case by the Court. Although failure of the parties to abide by the mediation agreement is unusual, since both parties were in agreement, a breach of the agreement will typically be reported to the Court for swift enforcement action by the Court.
- Arbitration is a more formal process, similar to litigation, where the parties submit their case to an impartial arbitrator or panel of arbitrators who will hear the evidence and render a ruling in the case which may be binding or non-binding, depending on the intent of the parties. Arbitration can be less costly and quicker than litigation because certain elements of the litigation process are not present. Discovery and other procedural issues (jury trials for example) are not present in Arbitration. Arbitrators may have special expertise in subject matter related to the dispute (such as construction contracts and performance). Attorneys are more likely to be used to represent the parties. Arbitration may have been agreed to in advance by the parties as part of their written contract which is the subject of the current dispute. If the contract included a provision for arbitration in the event of a breach of contract or dispute related to the contract, then the parties are bound by the terms of the arbitration clause of the contract. Arbitration clauses are usually contained in the initial contracts as a means to provide quicker and less costly remedies to the parties than litigation in the event of a dispute.
- Litigation is the most formal of our dispute settlement procedures. Your day in Court is controlled by complex rules of procedure and evidence which may limit the admissibility of evidence for consideration by the the Judge or jury. Significant pre-trial procedures provide for exchange of information between parties through discovery. The trial is more complex and formal than other methods for dispute resolution. Beyond the limited Small Claims Court procedure (in Florida, claims valued at less than $5,000), attorneys are utilized by both parties to present their case. The process is involved and expensive but designed to be fair and to permit a Judge and, in some cases, a jury to hear the facts of the dispute and to render a enforceable verdict determining the winning side and awarding a monetary judgment to compensate the winner.
What many potential litigants may not know is that in most cases in litigation the Court will order the parties to mediation as part of the pre-trial procedures to try to permit the litigants to resolve some or all of the issues in the case prior to trial to preserve judicial resources and to allow the parties to resolve their disputes with the lowest cost and least time and trouble in the Court system. The panel of available mediators for Court-ordered mediations has been screened by the Florida Supreme Court in its certification process to assure that mediators meet certain standards, established by the Court, for experience, education and training. The rules promulgated by the Florida Supreme Court for mediators and applicable statutes also establish rules for conduct, ethics and continuing education.
It is also possible for parties to a dispute to enter into their own pre-suit mediation to try to resolve their case before formal suit is filed. It is not unusual for professional associations and organizations to provide recommendations to their members of a number of mediators in their local area who may have special background or experience in the relevant profession. Typically, in Florida, parties select their mediators, usually with the assistance of their attorneys, from a panel of Florida Supreme Court certified mediators.
It should be noted that a number of studies indicate that the agreements that come out of successful settlement procedures such as mediation are generally more advantageous to the parties than court proceedings. One such study is discussed in the New York Times (Aug 8, 2008) <link here>
So, for so many reasons, if you find yourself in a legal dispute – remember that it may be to your advantage to MEDIATE – don't litigate. Alternative Dispute Resolution (ADR) to include mediation is a valuable tool for your business. Use it.
Additional information about Mediation in Florida at MidFloridaMediation.com