Forms of Alternative Dispute Resolution
Rebekah has expertise in a variety of methods of dispute resolution. Below are excerpts from articles describing the forms of ADR that Seven Tree Solutions provides.
From "What is Mediation?" by James Melamed (June 2000), available at http://www.mediate.com/articles/what.cfm.
Mediation may be thought of as "assisted negotiation." Negotiation may be thought of as "communications for agreement." Hence, mediation is "assisted communications for agreement."
Central to mediation is the concept of "informed consent." So long as participants understand the nature of a contemplated mediation process and effectively consent to participate in the described process, virtually any mediation process is possible and appropriate.
Key Qualities of the Mediation Process
Voluntary - You can leave at any time for any reason, or no reason.
Collaborative - As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.
Controlled - Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.
Confidential - Mediation is generally confidential, as you desire and agree, be that by statute, contract, rules of evidence and/or privilege. Mediation discussions and all materials developed for a mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. Your mediator is obligated to describe the extent of mediation confidentiality and exceptions to that confidentiality. The extent of confidentiality for any "caucus meetings" (meetings between the mediator and individual parties) should also be defined.
Informed - The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained. Expert advice is never determinative in mediation. The participants always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each mediation participant.
Impartial, Neutral, Balanced and Safe - The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. Your mediator is ethically obligated to acknowledge any substantive bias on issues in discussion. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
Self-Responsible and Satisfying - Based upon having actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.
Excerpted from Mediate.com at http://www.mediate.com/articles/grant.cfm#1.
Arbitration is the private, judicial determination of a dispute, by an independent third party. An arbitration hearing may involve the use of an individual arbitrator or a tribunal. A tribunal may consist of any number of arbitrators though some legal systems insist on an odd number for obvious reasons of wishing to avoid a tie. One and three are the most common numbers of arbitrators. The disputing parties hand over their power to decide the dispute to the arbitrator(s). Arbitration is an alternative to court action (litigation), and generally, just as final and binding (unlike mediation, negotiation and conciliation which are non-binding).
General principles of arbitration are:
- The object of arbitration is to obtain a fair resolution of disputes by an impartial third party without unnecessary expense or delay.
- Parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.
- Courts should not interfere
Independent Outside Investigation
From "Fact Finding: An Independent Third-Party Investigation," by the American Arbitration Association.
A fact-finding independent outside investigation is particularly effective when parties or their counsel are facing a difficult and significant decision with limited or conflicting information. Because of conflicting evidence, adversarial proceedings would likely require extensive information exchange or discovery. In such a situation, parties are seeking a truly neutral investigation and report because their common interest lies in negotiating a settlement or in a desire to conduct more focused information exchange or discovery.
The Center for Understanding in Conflict http://www.mediationinlaw.org/
ADR Resources http://adrr.com/
Association for Conflict Resolution http://www.imis100us2.com/acr/acr/default.aspx
Rational Shortcomings and Preparing for a Negotiation by Chuck Doran and Carl Kjellman, Mediation Works Inc. http://web.mwi.org/negotiation-blog/bid/338593/Rational-Shortcomings-and-Preparing-for-a-Negotiation.
Twelve Ways to Make Your Mediator Work Harder for You by Lee Jay Berman, first published in Advocate magazine (October 2009). http://www.mediationtools.com/articles/12ways.html.