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Mediation and Arbitration in the 21st Century

Medico Legal

by Juris Resolutions

What is Mediation?

Mediation is a process whereby an independent, neutral person (the mediator) helps disputing parties to find a mutually acceptable solution to their dispute.

The mediator does not operate like a judge and does not impose solutions on the parties. On the contrary, the mediator will discuss the issues with the parties and help them bring about a solution to their dispute. Thus, mediation gives the parties a stronger voice than the courts in resolving their dispute.

Any type of dispute can be mediated and mediation is often more effective than litigation. First, it isquicker and less expensive. Instead of taking years for a dispute to wind its way to trial, mediation can end cases quickly and effectively. This saves the parties considerable time and substantial expense. Second, because the mediation process is informal, confidential and private, it avoids the emotional distress of having parties go to court and parade their dispute before strangers. In this way it can also saveor heal relationships that court based litigation destroys.

Sometimes, the resolution of a dispute may require the payment of money from one party to another, but, on other occasions, more creative, non-monetary solutions, can effect a settlement that benefits all parties to the dispute. Mediators have more flexibility than judges to achieve creative dispute solutions but, if a settlement is reached, the settlement agreement can be enforced through the courts, if necessary.

 

What is Arbitration?

 

Arbitration is a process whereby a neutral person (the arbitrator) decides a dispute between the parties in accordance with applicable law.

The arbitrator may be appointed in different ways.Sometimes a contract provides for the appointmentof an arbitrator; other times, the parties may agree to appoint their own arbitrator. The arbitrator is a skilled practitioner who will decide the dispute and provide a reasoned decision which will be final and binding on the parties and can be enforced through the courts.

The rules of the arbitration may be set in advance,agreed by the parties or set by the arbitrator. The parties generally bear the costs of the arbitrator’s services equally but the arbitrator has the power to order that the costs of the arbitration be allocated in a fashion that is just and consistent with the final award which is typically issued within 30 days of the hearing.

There are many advantages to arbitration over litigation. Arbitrations are quicker, cheaper and more focused than a court trial.The arbitrator will manage the dispute at a pre-hearing conference and streamline the issues, witnesses and evidence to insure an expeditious and efficient hearing. Delays are avoided because, unlike the courts, there are no other trials or competing judicial proceedings to delay the hearing. Because arbitration proceedings are less formal than the courts, parties and witnesses are often more at ease.

The Advantages of Using Juris Resolutions for Mediation and Arbitration

Juris Resolutions offers a panel of distinguished former judges and experienced lawyers who are trained and qualified as mediators and arbitrators.These experienced, independent professionals are committed to providing fair and impartial services to everyone who uses them. Their profiles and fees are accessible online at www.jurisrsolutions.com.

Traditionally, mediators and arbitrators have, either by themselves or with the assistance of the parties and their lawyers, made all of the arrangements essentiaL to the completion of the proceedings. This means,however, that part of their time and energy is spent on administrative details rather than focusing on the dispute to be resolved.

Juris, on the other hand, frees the mediator or arbitrator and the parties from the burdens of administration. Thus, all of the administrative arrangements essential to a successful mediation or arbitration are handled by Juris professional case managers. This administration is cost effective and not only avoids delays and difficulties in organising the proceedings but also gives the parties a case manager with whom to discuss concerns about the dispute without the risk of harming the neutrality of the chosen mediator or arbitrator.

There are many practical advantages in using Juris administrative services. First, it is possible to make all the arrangements online through the Juris website at www.jurisresolutions.com. There is 24/7 online access plus telephone support during business hours which makes the entire process efficient and user-friendly.

In addition, Juris provides a secure, password accessed and encrypted, online portal that allows each side to file and serve its written materials and upload its evidence for presentation at the hearing. This saves the time and expense of preparing old-fashioned paper bundles and allows hearings to proceed efficiently with parties having immediate electronic access to all documents.

Juris mediation facilities have been carefully chosen and are convenient, professional and comfortable. Conference rooms are equipped with WiFi for laptops and tablets and presentation equipment is available on request. Refreshments and food are provided for all those attending the proceedings.

Juris case managers are top level professionals ready to assist the parties with information on the many questions that arise in preparing for mediation or arbitration.

All of these services and facilities come as part of a complete package that is efficient and cost effective. All fees and costs are displayed on the website so that parties can be certain of the cost of their resolution proceedings from the outset.

Tips for Successful 21st Century Resolutions

There is no doubt that for reasons of efficiency, economy and practicality, mediation and arbitration will continue to be used increasingly in the 21st century. The Juris website offers valuable information about preparing for successful mediation and arbitration.

For those with little or no experience of mediation, we provide the following advice to enhance the prospects for success.

1. The timing of mediation is critical to its success. Unless all opposing sides believe they are ready to discuss a resolution to the dispute, there is no point in forcing parties to mediate.

2. Good faith is essential. No matter how far apart in their views of the dispute, unless parties approach the mediation willing to listen to the views of the mediator and each other, it is unlikely to be successful. At the beginning, attitude is as important as assessment.

3. Reasonableness is the key to negotiations. No one expects a party to begin negotiations with their “bottom line”, but settlement proposals should be reasonable to encourage concessions by all sides.

4. Hostility never works. Sometimes there is a history of animosity between the parties or their legal representatives. This must be parked out of sight and mind because it stifles the spirit of compromise essential to reaching a deal. If you won’t let go, you won’t settle.

5. Choose the right mediator. The chosen mediator should be someone who is considered trustworthy and suited to the dispute by all parties. Experience,style and reputation are all relevant factors to consider. Sometimes using a mediator who knows the area in dispute can be helpful but that is not always essential, Sometimes, a ‘fresh pair of eyes’ can see things in a different, but helpful, perspective.

6. Don’t wing it. Come prepared to mediation. There are many aspects to being prepared. Here are a few:

• Submit a mediation brief explaining your case to both the mediator and the other side. You will need to persuade both to resolve your dispute favourably.

• All parties must be present. Without them, the dispute will not resolve. Corporate parties must have decision makers present and any representative should have authority to make settlement decisions. The representative must also have immediate access to anyone who needs to provide authority at unforeseen levels.

• If there is information critical to evaluation and settlement, it should be known or at least demonstrable to all sides. If someone has “a smoking gun”, it is wise to remember that late in the day surprises are rarely as effective as the holder believes. Early disclosure of important evidence is usually helpful to persuading people to change positions.

• Parties must have information about costs to date and forecasts of future costs in the case. Without such information, the economic risks of failing to resolve a dispute cannot be fully evaluated.

• If uninvolved but important third parties are essential to a final resolution, they should be consulted in advance of the mediation and be available in some  fashion to contribute as needed.

For those with little or no experience of arbitration, we provide the following advice to enhance the prospects of success. 

1. The most important decision is choosing the arbitrator. He or she will not only decide the case but will also manage its progress towards the hearing.Select the arbitrator with whom you feel comfortable.

2. The preliminary hearing is very important as it will confirm the choice of law and case management rules,establish the key issues and set an outline of the preparation needed to bring the dispute to a hearing. Be prepared to contribute meaningfully to this proceeding.

3. Work cooperatively with opposing parties to maximise the benefits of arbitration such as streamlining your discovery needs, eliminating unnecessary issues and proofs and utilising an online server, such as Juris provides, to upload and access documents for your hearing.

We look forward to assisting you in dispute resolution.

Martin Blake and Kathy Sinclair

Directors of Juris Resolutions

Contact us through Juris Resolutions at

www.jurisresolutions.com

Company Profile

Juris Resolutions, a full service mediation and arbitration company, commenced business in October 2016 in Belfast, Northern Ireland. Its directors and managers are Kathy Sinclair and Martin Blake. As is evidenced by its website www.jurisresolutions.com, the company has a clearvision of providing a 21st century level of alternativedispute resolution (ADR) services.

Kathy, a solicitor with over 30 years’ litigation experience and an ACAS accredited mediator since 2010, was one of the first in Ireland to write and deliver a university course in Alternative Dispute Resolution at the University of Ulster. She brings a seasoned legal, practical and academic interest to the company’s approach to providing ADR services.

Martin, an attorney and former barrister, has over 30 years’ experience of ADR in California where he acted as both a private mediator and settlement judge. Martin has been listed for the last 10 years in the authoritative publication ‘Best Lawyers in America’ and is a former chair of the International Practice Section of the American Association of Justice.

The national and international legal experience of both directors supports their aim to make Juris Resolutions the leading private provider of mediation and arbitration services in the UK. States Kathy: “It is our intention to expand our operations throughout Ireland as quickly as possible. Once established, we look forward to helping clients throughout the UK.”

 

ADR Mediation

Lord Justice Briggs who has an impressive legal career, was appointed Deputy Head of Civil Justice on the 1st January 2016. Briggs predicts that mediation will become the norm if plans for a new online court comes into existence. The online court would deal with monetary claims up to twenty-five thousand pounds.

In September 2016, Briggs told the Chartered Institute of Arbitrators’ mediation symposium his recommendation for a court with a three stage process,will for civil dispute resolution hopefully bring adr mediation, alternative dispute resolution into the forefront.

It is contended that mediation would not become mandatory, the hope being that it would align, bring the alternative dispute resolution, adr mediation community closer together with the court service, with the aim of civil dispute resolution through a suitable and primary route.

It was said that mediators and the courts worked alongside one another providing mediations in many of the county courts on a vast array of civil disputes. Indeed the mediation service worked well till the decision to close the National Mediation Helpline in 2011.