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ADR (ALTERNATIVE DISPUTE RESOLUTION) AND MEDIATION

Back in the day when my father practiced law, which was quite some time ago, if a dispute between parties escalated to the point of a lawsuit, most cases proceeded to trial (a lot quicker than they do now), and the case was resolved by the court after making a decision at the conclusion of trial.

Today, however, with the escalated costs of litigation including attorney’s fees, expert witness fees, and other litigation-related costs, as well as the large number of cases that the courts have to manage, the California courts (and the parties) have turned to alternative dispute resolution (ADR) to dispose of most cases. ADR methods can minimize the costs and uncertainty of litigation, and it relieves the court’s large case load by resolving the cases outside of court.

ADR has risen into popularity in the last 20 years or so as a very good alternative in most cases to fully litigating the case and proceeding to trial. Litigation and trials are very, very expensive and very time consuming. In California, two forms of ADR, arbitration and mediation, have nearly replaced court trials in dealing with lawsuits. Arbitration is essentially a private trial, and will be addressed in a separate article. Mediation is a process where the parties and their attorneys all get together with a neutral third party, usually a retired judge or an attorney, and collectively attempt to resolve or settle the dispute.

But why mediate you ask. As stated earlier, the cost of litigation can be very expensive, even in many of the simplest of cases. Additionally, the traditional litigation process can be very time consuming and last a very lengthy period. Finally, utilizing the trial process leaves a great deal to chance.

Juries are unpredictable and judges can make mistakes and often do. Consequently, the litigation process is largely outside of the parties’ control and the outcome is very uncertain. Mediation enables the parties to maintain control of the outcome. A mediation, if successful, results in a settlement that the parties have agreed to. Consequently, the parties control the outcome. The alternative of going to trial is to leave the outcome of the case to a judge or jury after spending large amounts of money in getting to that point. Mediations, particularly mediations that are completed early in the case, minimize the cost to the parties, and leaves control of the outcome of the case within the hands of the parties. For all of these reasons, mediation, with the right mediator and attorneys, can be a very effective tool in resolving civil lawsuits. Mediations can even be useful prior to the commencement of a lawsuit and as discussed in my article, Mediating Real Estate Contract Disputes, certain contracts require mediations to be completed prior to the commencement of the legal action or lawsuit.

I have regularly represented clients at mediations for many years in Walnut Creek, Oakland, the East Bay, and throughout the Bay Area, California. If you have questions or need assistance in mediating your dispute by an experienced and effective California attorney, please feel free to contact me to discuss your case or to arrange for a consultation. I can be reached at (510) 465-0025.

 

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