While we all know how important it is to keep a level head and be ‘all business,’ legal disputes can still get heated, as well as expensive and time consuming. Because of that, many business contracts include dispute resolution clauses stating that arbitration, mediation, or judicial reference will be used over litigation if a legal issue arises. These clauses usually get very specific too, stating how disputes will be presented to the other party, as well as where they will be resolved and who will pay any attorney’s fees. While each process has its good points—along with drawbacks—it is helpful for citizens to have other options.
Terms such as arbitration and mediation are becoming much more popular today—along with judicial reference in California. Courts and other legal forums not only allow, but sometimes encourage such processes as budget cuts and clogs in the legal system persist. Often, alternative dispute resolution is a more affordable and efficient way of resolving issues.
Arbitration
Although less formal, arbitration is the alternative dispute resolution method most like court. It is also stipulated as the mode of resolution in many dispute resolution clauses, offering an atmosphere that is still more casual, and usually more affordable.
Scheduling is usually easier, and in many cases the matter can be settled much more quickly and privately than in court. And while the parties involved can choose the arbitrators for their case (often there may be as many as three arbitrators, deciding the case on majority vote), the process is usually considered binding with little chance for appeal.
For an individual engaging in a legal dispute with a large corporation, arbitration can sometimes be a challenging process as they may have less resources and be forced to travel. The deck may also seem stacked against them as the arbitrators working for the larger company are highly skilled and care only about protecting the other side’s agenda, lacking neutrality or an unbiased attitude.
Mediation
Mediation is a very popular form of alternate dispute resolution, due to the casual atmosphere, easier access and flexibility in scheduling, affordability, and privacy. The mediator is a neutral party serving to help those involved work together in finding a suitable resolution. The outcome is driven by both parties agreeing on a settlement as ultimately, they control the process. Because it is less confrontational and aggressive from a legal standpoint, mediation can also be helpful in disputes where neither party wants to ruin a longstanding relationship.
For some, however, mediation may be too casual and less rule-driven. There is little to no discovery performed during the process, no transcription is made, and the mediator is not required to have a law degree. Parties may also drop out of the process at any time if they are not happy with the direction the case is going. And although decisions reached are usually considered binding, sometimes there is question about enforceability later.
Judicial Reference
Judicial reference, unique to California, may be the lesser known when exploring dispute resolution processes, but it does offer benefits that are somewhat like arbitration. Primarily, the jury trial is avoided. And although the court may appoint a referee to hear to the case, the parties involved can nominate and choose their own. They must be able to decide on referee however, amidst the option of being able to object to those chosen by the other side.
And although the judicial reference process is not private, another great benefit is that the decision can be appealed. Once the referee offers their ‘recommendation’ to the judge (within 20 days of the hearing), if it is to be appealed, that is handled through the regular court system.
Contact Us for Help Now
Attorney Shane Coons is highly skilled in all methods of ADR, to include mediation, arbitration, and California’s judicial reference system. If you have a legal issue and want to learn more about the best alternative dispute resolution process for your case, please call Shane Coons now at 949-333-0900 or email us at Shane.Coons@seclawoffices.com.