Helping You Resolve Disputes Via Alternative Means
Gammon & Grange, P.C., offers Alternative Dispute Resolution Services for a wide range of legal conflicts. While there are several different types of Alternative Dispute Resolution (ADR), the two most common and most useful are Mediation and Arbitration.
Mediation is a process whereby the parties to a dispute meet with a neutral facilitator who guides their discussions and assists them in reaching their own resolution. The Mediator has no authority to bind the parties to anything, but a written and binding voluntary agreement is the usual result.
Arbitration is a process whereby the parties to a dispute voluntarily grant authority to either a single arbitrator or a panel of arbitrators to make a binding decision, which if necessary is enforceable by the courts. Arbitration may be thought of as a decision by the parties to a dispute to retain the services of a Private Judge rather than to take their dispute to court.
It is possible and often recommended to combine the two processes so that the parties move into an arbitration phase only if mediation is not first successful and only upon those remaining issues not resolved in mediation.
There are a number of important advantages to choosing ADR over litigation. The primary reason why people do not choose ADR is simply a lack of awareness of the option and knowledge of how it works. It is also true, however, that we live in a highly litigious culture, where fighting for one’s own personal advantage may be recommended and expected by many acquaintances of the parties to the conflict. It is often difficult to choose something which is not recommended by friends or family members.
Below is a brief list of primary differences in the two options and processes for resolving conflicts, judicial and ADR, and the reasons why ADR is often preferable.
Litigation is costly. Few people leave the court house thinking that they received a bargain. Often these costs can be stunning, many times what was expected. Costs are often driven by the actions and aggression of the opposing party, who may file a counter-suit or Motions and Discovery which require a great deal of time and money to respond to. These costs are often difficult to anticipate or budget for in advance.
There is often no simple or abbreviated way in the judicial system to get a case fully heard and resolved. Some types of cases may fall within the jurisdiction of “small claims” courts and procedures. But even there, parties are often at a significant disadvantage without counsel. Most types of cases cannot be resolved in this way and fall within the jurisdiction of courts which have detailed procedures and rules of evidence that are very difficult to navigate without counsel. To bring such a case to trial and have it successfully completed will often cost tens of thousands of dollars. Unfortunately, the result may often not justify the cost.
Compared to litigation, most ADR procedures are relatively inexpensive. While legal counsel is encouraged, the roles of the attorneys are often more limited, and may involve only advice. Even if the attorneys are presenting the case in arbitration, their billable time is often considerably less than in the formalities imposed by judicial litigation. Since the fee of the Mediator or Arbitrator is usually divided by the parties, and because the time involved is usually a fraction of the time involved in litigation, ADR procedures are generally more affordable to more people.
Because most court dockets are over-burdened with litigation, it can often take a year or longer to get a trial date. While the parties wait and pretrial procedures are undertaken, the underlying conflict remains unresolved. Preliminary discovery (e.g., document production, interrogatories, depositions, etc.) not only run up costs, but also often increase the tensions and conflict while awaiting trial. On the other hand, ADR can usually be started and completed much more quickly. ADR can be initiated within days or weeks by agreeing on the mediator/arbitrator and then scheduling a first meeting.
While many people are under the false impression that a court can do almost anything the judge pleases, in actuality the law only permits the court to take certain well defined and limited actions. Because the authority of the court is limited, many issues of importance to the parties necessarily go unaddressed. In ADR, most any issue which is of importance to the parties may be addressed and resolved. There are no legal limitations on subject matter.
4. Being Heard
Litigants often have a deep emotional and psychological need to be heard; that is, to be able to publically explain the injustice which they felt, or whatever it is which is burdening them. And if they leave the court room without the sense that they have been heard, they will often believe that justice has not been done, even if the law has been fully complied with. Judges are limited to receiving into evidence only that which is legally relevant to the precise issues which are before the court. In ADR people are typically allowed to say whatever they need to say, and to have the other party hear, without being restricted by rules of evidence or court procedures. This very fact is often the most basic step towards resolution and sometimes restoration of relationships.
The Rules of Procedure and the Rules of Evidence which govern litigation are both complex and limiting. In ADR these rules do not apply. An experienced and perceptive mediator/arbitrator will skillfully direct the proceedings, and anything which the parties strongly believe to be relevant, material or important will generally be allowed.
Anyone who walks into a court room and puts his or her case before a judge has lost control of the outcome. He or she will have to accept whatever the judge decides. In ADR parties maintain more control over the outcome. In Mediation, they will not have to accept anything which they have not themselves agreed to. And even in Arbitration, they remain in control of what is put before the Arbitrator to decide.
Legal conflict, like other types of conflict, produces great stress. And this stress will generally continue as long as the conflict continues. ADR offers a method of conflict resolution which can resolve the dispute more quickly and fully, and therefore allows an end to the stress and an opportunity for healing.
Even when a case has been fully litigated, and therefore resolved as far as the law is concerned, relationships are generally broken. The adversarial system itself is not designed to mend, redeem or heal; it is designed merely to end civility-disrupting conflict. ADR can offer an opportunity to restore relationships. It will not always do so, but it offers the best opportunity for doing so. If the Conciliator/Mediator/Arbitrator is a person who understands the value of restoration and knows how to encourage it as part of addressing the primary goal of the proceeding, which is conflict resolution, then restoration of relationships is given a real chance.
Mr. Klima views his passion and calling to help people achieve a just and reasonable peace as a natural outgrowth of his decades of experience representing parties in difficult family law conflicts. Both that experience and his 12 years of service as a Substitute Judge have given him the knowledge and understanding to guide people to a resolution similar to what they might expect to achieve in court, at a fraction of the time, expense and stress, which they might otherwise experience. He is also committed to helping to restore relationships to the greatest extent reasonably possible.