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Mediation
Arbitration
Settlement Conference
Mini-Trial
Referees for Discovery and Accounting
Neutral Fact Finding
Private Trials
Med-Arb
Mediation is a process in which an impartial
third party assists the parties to resolve a dispute and obtain
a mutually acceptable settlement. The mediator promotes communication
among the parties, helping them to identify their interests in
the dispute and frame the real issues involved. The mediator does
not impose a decision on the parties. Instead, the parties retain
total control over the outcome of the negotiations. The final
settlement reflects the combined efforts and creativity of the
parties, their counsel, and the mediator.
Mediators employ different styles to resolve
a particular dispute. Facilitative mediation enables the parties
to maintain complete control over the structure of the mediation
process. The mediator guides the parties and offers options to
promote communication.
Evaluative mediation occurs where the mediator
evaluates the factual and legal issues of the dispute, to advise
the parties of the possible outcome of the dispute. The mediator
will use any one or more styles and any guidelines agreed upon
by the parties to settle a dispute.
In arbitration, the arbitrator hears evidence and
arguments from the parties and makes a written decision or "award."
The award may be binding or nonbinding, depending upon the agreement
of the parties. The arbitration process can be flexible, and can
be as formal or informal as the parties agree. This process enables
the parties to select an arbitrator with the particular expertise
in the subject matter in dispute. The process is usually less
protracted and time consuming than allowing the case to proceed
to trial in the court system.
A settlement conference is a form of mediation,
usually conducted before a retired judge or other experienced
litigator. The parties present the factual and legal issues to
the neutral. The neutral takes an active role to attempt to settle
the case, and will express an advisory evaluation as to the merits
and settlement value of the case. This enables the parties to
obtain an early indication of the strengths and weaknesses of
their respective positions early in the dispute resolution process.
The settlement conference is nonbinding.
A mini-trial is a process similar to evaluative
mediation. In this process, the neutral sits on a panel, along
with representatives from each of the parties. The party representatives
have full settlement authority. The neutral will moderate the
hearing and offer an advisory evaluation, if necessary. The neutral
works with the party representatives to attempt to facilitate
a settlement. The goal is to treat the dispute as a business problem,
to be resolved through a practical business solution, instead
of as a matter for litigation.
California Code of Civil Procedure Sections
638 and 639 enable the parties (or the court) to select a neutral
referee to determine issues in the case, or certain specified
issues, such as discovery and accounting disputes. The referee
conducts a hearing, where the parties present their evidence and
argument. After the hearing, the referee submits the appropriate
findings and decision to the court. The trial judge usually adopts
the referee’s decision. Objections to a referee’s findings
may be filed by the parties to be resolved by the court.
The reference is voluntary when the parties
agree that a referee is necessary under Code of Civil Procedure
Section 638. The reference is involuntary when the court independently
determines that a referee is necessary under Code of Civil Procedure
Section 639. This procedure allows the parties to efficiently
resolve disputes that the trial court may otherwise be too burdened
to resolve in the normal course of its calendar.
A neutral fact finder is often used to investigate
a dispute involving technical, economic or other matters which
may involve expert opinion. The fact finder interviews the parties,
analyzes information and data presented by the parties, and conducts
an independent investigation into the disputed issues. The fact
finder renders an opinion that may greatly increase the chance
for settlement. This process can be used as a stand-alone procedure,
or in combination with another dispute resolution process.
In a private trial, a neutral selected by the parties
renders a decision in the case. The judgment issued by the neutral
may be appealed. The case pending in the public court is stayed
until the neutral issues a decision. The judgment is then entered
by the court as if the trial took place in court. This process
enables the parties to select a neutral with the particular expertise
required to render a verdict to resolve the matter. The parties
also control the time frame for resolving their dispute.
In a med-arb, the parties agree in advance
to begin the resolution process with a mediation, and then shift
to an arbitration if the case does not settle in mediation. The
neutral facilitates settlement negotiations, and also makes binding
decisions on any issues that may hinder settlement. Ultimately,
the matter is resolved by the parties with a negotiated settlement,
or by an award from the neutral.
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