Martindale Hubbell

A Q&A HELPED EDITORS UNDERSTAND THE ISSUES IN THIS NEW TITLE

 

QUESTIONS & ANSWERS ABOUT DISPUTE RESOLUTION (DR)
from The Martindale-Hubbell Dispute Resolution Directory

Q: Is litigation the only way of solving disputes?
A: There is an alternative route to resolve differences with an adversary, other than the courthouse steps. It's called "dispute resolution." Dispute resolution (DR) is a generic term covering the use of various methods to resolve disputes without traditional court actions. DR has become a popular option because it often results in a speedy outcome, it saves on legal fees and other costs, it can help preserve relationships, and it's more confidential than an open court battle.
Q: What are the different types of dispute resolution?
A: The most common DR options are covered in "The Martindale-Hubbell Dispute Resolution Directory." They include mediation, arbitration, dispute review board, early neutral evaluation, fact finding, med-arb, minitrial and multi-door courthouse.
Q: What is the difference between mediation and arbitration?
A: Mediation means "negotiation through an intermediary." Two or more parties meet with a neutral third party, who guides the negotiation process, advising and listening to all sides, and helps the parties arrive at a win-win settlement. A mediated settlement is non-binding. If any party in the dispute is unhappy with the outcome, that party may opt not to sign a settlement agreement, and proceed to arbitration or litigation.
Arbitration involves a decision maker who issues a ruling, whereas mediation is a "negotiated" procedure. In an arbitration, disputants do not haggle back and forth to craft a settlement, as they do in a mediation. Participants in an arbitration yield control of the outcome to the neutral arbitrator and the verdict is grounded in law.
Q: When is a dispute review board most commonly used?
A: A dispute review board (DRB) is a three-member panel that performs the combined functions of project oversight, dispute prevention, and swift dispute prevention. The DRB is assembled at the start of a project, to monitor the project from start to finish, and to be "on call" at all times to mediate and help resolve any dispute, disagreement, or problem. It is often used in large construction or business projects. All recommendations made by the DRB are non-binding.
Q: At what point does early neutral evaluation take place?
A: Early neutral evaluation is a court procedure that encourages civil cases to settle through a dispute resolution process while they are still in the early pre-trial stage. Attorneys and their clients, who have filed a civil case in federal or state court, meet before a neutral third-party, and present summaries of their cases. All of the neutral's recommendations are non-binding.
Q: What happens when a dispute can't be settled through negotiation or mediation?
A: Fact finding is a process used to spur a settlement when a negotiation or mediation has reached an impasse. It is a stopgap attempt to resolve differences before the parties resort to arbitration, litigation, or in the case of collective bargaining, a strike. All of the fact-finder's conclusions and recommendations are non-binding, however they are usually incorporated into the parties' continuing negotiations, and often help to pave the way to an agreement.
Q: Can mediation and arbitration be combined?
A: Med-arb is a two-step dispute resolution process involving both mediation and arbitration. In med-arb, disputants try to resolve their differences through mediation. However, if mediation fails to resolve some or all of the issues, the remaining, unresolved issues are automatically submitted to binding arbitration.
Q: Are there any additional options to courthouse litigation?
A: Both minitrials and multi-door courthouses are used before cases reach the litigation stage. In a minitrial, attorneys argue their clients' cases before a panel of decision makers, comprising a top official from each organization involved in the dispute. These officials listen to the presentations and negotiate a settlement.
"Multi-door courthouse" is a name given to any traditional court with a structured program offering litigants an array of different ways to resolve their disputes. Rather than simply adding incoming cases onto the litigation queue, multi-door courthouses screen incoming cases and route them to appropriate dispute resolution procedures.