Arbitration and mediation – what they’re all about |

Arbitration and mediation – what they’re all about

Arbitration and mediation are as old as humankind itself. Pre-dating formal law, arbitration and mediation have existed, more or less informally, since human beings first began to have disputes. First of all, what are arbitration and mediation and how do they fit into the context of the “law?” How, too, do they differ from more formal legal proceedings and how do they differ from each other?In essence, there are two broad areas of law: criminal law and civil law. Perhaps the best way to define both is by comparison; criminal law involves breaches of encoded law by the individual against the State. The State, exercising its “police” functions, enforces these actions in a court of law against the individual offender. Civil law, simply stated, involves all matters which are not criminal in nature. The universe of “civil” law concerns non-criminal disputes between individuals or entities not involving the police functions of the State.Civil law can be further divided into statutory and “case” law, which can itself be further subdivided in “common” law and the law of “equity.”Statutory law involves certain statutes or “laws” passed by the legislature and encoded in a “book of laws.” In a way, this can be thought of as a noncriminal police function of the State. In Colorado, this book of civil laws is referred to as the Colorado Revised Statutes.Case law is comprised of the “common” law and the law of “equity.” Both are based on “precedent,” or what the courts have decided when faced with similar facts and circumstances in other, earlier cases. The law of equity arose from British origins and may be thought of as justice administered according to doctrines of fairness as contrasted with the oft-times strictly formulated rules of common law. In its incipiency, the law of equity originated as an alternative to common law. It is a system of jurisprudence collateral to, and in some respects independent of, the “law.” Although differing in its origins and theories, procedurally, in federal courts and most state courts, both “equitable” and “legal” rights and remedies are administered in the same court and in the same proceedings.Arbitration and mediation are both alternative means of dispute resolution. That is to say, they exist outside of the formal courts of law. Although, parenthetically, an action pending before the court may be referred by the court to either court-supervised or independent mediation, both arbitration and mediation still largely maintain their independence from the courts. Simply, both arbitration and mediation are less formalized, less structured means of resolving a dispute. Not only are the proceedings often much less formal than a court action, but so too are they almost always swifter and less costly.Arbitration differs from mediation. In mediation, a neutral third party, the mediator, tries to guide the disputants to a mutually satisfactory resolution of their differences. He or she will endeavor to interpret the facts and law and to help the parties themselves come up with an answer and acceptable resolution. In arbitration, the arbitrator sits as a de facto judge. Although the proceedings are still less formal than in a court room, it is the arbitrator, sitting as a “judge,” who will make findings of fact and law and come up with a decision.Arbitration may be binding or non-binding. That is to say, before the arbitration proceedings commence, the parties will determine, by mutual agreement, whether to be bound by the arbitrator’s decision or, alternatively, simple to use the arbitration as an opportunity to explore the strengths and weaknesses of their respective cases. This knowledge often leads to informal settlement. It should be noted too that while mediation and arbitration are often “elective” means to resolve disputes, sometimes they are mandatory. This usually occurs where both parties have agreed by contract to enter into arbitration in the event of dispute. Similarly, the parties may agree when contracting, before a dispute arises, to make the arbitration binding in the event a dispute someday arises.Procedures for choosing the neutral party are arrived at in advance of the mediation or arbitration. Sometimes, the parties agree on a single, neutral arbiter of the dispute. Other times, each party will select one person acceptable to him or her and the two arbitrators, in turn, select a third person between them to form a panel of three arbitrators.Owing to the congestion in nearly all our nation’s courts and the increasing costs of litigation, mediation and arbitration are often attractive alternatives to litigation. Not only can the disputants “get heard” much more swiftly, but, too, the proceedings themselves are often more speedy. As stated before, the costs, too, can be significantly less than formal litigation. One further intangible to these alternative means of dispute resolution is that disputants who submit to mediation or arbitration often feel more involved in the process and more “connected” to the justice they receive. For all these reasons, mediation and arbitration, whether binding or non-binding, is often a sensible alternative to formal litigation and should be explored and seriously considered before any lawsuit is filed with the courts.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Mr. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Mr. Robbins may be reached at 970/926.4461 or at his e-mail address: robbins@colorado.netVail, Colorado

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