The attorney long used to jury trials in which emotional arguments are used to persuade lay people or who engages in dramatic and aggressive cross examination finds the arbitrator more annoyed than persuaded and it is critical to adjust tactics accordingly. Mediation is a relatively new method used by parties to seek to resolve their differences by use of a professional neutral who hears the matter but has no power to render a final decision. The mediators often can be called in with only a few days notice and meet and confer with all the parties to seek a common ground for settlement. If either party elects to reject settlement, the mediation is abandoned. Mediation is normally used in conjunction with either arbitration or litigation and what is stated in the mediation process can not be used in the arbitration or court at a later time should no settlement occur.
Mediation can be attempted at any time during the case, be it litigation or arbitration occurring.
Few businesses elect the expense of litigation if arbitration is available. Put simply, arbitration is a business like forum for resolution of business disputes and while the elaborate safeguards of the legal system are often not available, the need for prompt and private resolution of disputes seems to convince most of our business clients to elect to insert arbitration clauses in most of their contracts. Indeed, some of our clients consider a refusal to agree to an arbitration clause on the part of the other party negotiating a contract as sufficient cause to reconsider the entire transaction, feeling that rejection of such an efficient system of dispute resolution displays too aggressive an attitude. And for those clients used to non American systems of law, arbitration seems a welcome and familiar way to resolve disputes and protect the rights of the parties. It is critical to remember that the only way to ensure the right to arbitrate a matter is to agree to it in the contractual documents.