Interviewer: What is mediation? What is the purpose of that?
Robert Cummings: Well, so for the most part, and I had somebody explain this to me the other day and I found it kind of funny, the courts were the traditional mediators. The purpose for our court system is to allow parties to resolve disputes by an independent intermediary. If two people cannot come together and figure out their dispute on their own, they go to court to resolve the dispute. The judge just takes the information and decides who wins the dispute. Thus, overall, the courts were the traditional mediator or arbitrator. Over the years, and specifically probably in the past fifty years, litigation has got quite expensive, though. The increased cost and time-delay in litigating cases necessitated another form for dispute resolution.
Alternative Dispute Resolution (“ADR”) Takes Two Essential Forms: Mediation and Arbitration
For the most part, there are two types of ADR, either mediation or arbitration. Mediation is voluntary by the parties, where they sit down with what is referred to as a neutral or a mediator, much the same as a judge. That mediator listens to both sides and tries to find some common ground to work out an agreement. Then, if the mediator can get the parties onto common ground, they memorialize the agreement in a contract. That contract is binding against the parties. If there is a lawsuit filed, like in a family law matter, you can then file that mediated agreement with the court so that it is then a binding order as well. Or, if it is pre-lawsuit, you then have a binding contract between the parties. So, if one of the parties does not perform under the contract, you then have a breach of contract action that you can bring in court.
The other form of ADR is arbitration. Arbitration generally is binding. So, if you sit down with a mediator and it does not work out, you can then go to court if you want. Arbitration says, “We are going to submit our case … Rather than to a court, we are going to submit our case to an arbitrator.” Nationally, there are two large arbitration organizations, the AAA and JAMS. Arbitrators are usually former judges or very experienced attorneys who will hear the case as if they are the judge. Then, upon presentation of all of the information, including the parties engaging in discovery, the arbitrator will render a decision, and that decision is binding just as if a judge rendered the decision in court.
There are Appellate Rights from Arbitration Similar to Civil Courts
Now, like civil courts, there are some appellate rights from arbitration. So, if a district judge, here a trial judge, gives me a decision in my case that I do not like, I can go to the appellate court, or the the reviewing court, and say to the appellate panel, “Your Honors, the trial judge screwed up because of x, y, and z.” You can do the same with arbitration, but the standard of review, or the criterion by which the reviewing court analyzes the lower court’s decision, is very narrow. It basically has to be that the arbitrator’s decision was so contrary to the law that it does not make sense, for the most part. Thus, while arbitration can be a cost-effective way to resolve disputes, it can also be a frustrating process depending upon the arbitrator’s decision.