A Cynic’s Guide to Civil Litigation – Chapter 11 – Mediation and Arbitration: The Less Traveled Road

Why choose mediation or arbitration (dispute resolution) over trial?

Firstly, imagine a trial as the express lane on the highway during rush hour - it's designed to be fast, but in reality, it's a bumper-to-bumper nightmare. Mediation and arbitration, on the other hand, are the scenic back roads where you avoid traffic and enjoy a more relaxed drive. They are generally faster and less expensive than traditional litigation.

Secondly, think of mediation as a 'build-your-own-solution' workshop. It's flexible and allows for creative solutions that a court, bound by laws and precedent, may not be able to provide.

Lastly, both mediation and arbitration are private, avoiding the public spectacle that can accompany a trial. Imagine resolving disputes in your comfy living room, instead of a rigid courtroom.

First on our tour: Mediation, which is the equivalent of inviting your nosy, but well-intentioned, neighbor to help you and your spouse decide who should take out the trash. This good Samaritan (the mediator) doesn't have any decision-making power, but they'll play peacemaker and help you find a resolution. Mediation is a process of facilitated negotiation, where the mediator helps the parties communicate, define their issues, and reach a mutually agreeable solution.

Next, let's visit the land of arbitration, which is akin to hiring a private judge to determine if your neighbor's tree is indeed ruining your view. In arbitration, a neutral third party (the arbitrator) hears both sides and then makes a decision for you. It’s like a private, less formal court, where the arbitrator's decision is based on the evidence and arguments presented.

Arbitration proceedings can be likened to a streamlined version of a court trial. Parties present their case, bring witnesses, and submit evidence, all within a more relaxed setting. In contrast, a mediation session can look like a well-guided conversation, where the focus is on open communication and collaboration to reach a common ground.

Here's where things get a little technical: binding versus non-binding. Imagine binding mediation or arbitration as buying a non-refundable ticket for a concert – you're going, whether the band is in top form or has lost its groove. On the other hand, non-binding mediation or arbitration is more like making a dinner reservation - you can cancel it if you find a more appealing option. Binding means you're committed to the outcome, you are bound by the decision, good or bad, while non-binding allows you to reject the resolution and try a different avenue.

Next up: a single arbitrator/mediator or a panel. Think of it like choosing between a solo violinist or a string quartet for your wedding. The solo violinist (single arbitrator or mediator) can be cost-effective and speedy, but the string quartet (panel) provides a richer sound, or in the case of dispute resolution, a broader perspective.

A "high-low agreement," in the world of arbitration, is like agreeing on the bounds for a game of hide-and-seek. The attorneys agree beforehand on a minimum and maximum range for the award. This ensures that regardless of the arbitrator's decision, the award stays within these bounds, preventing any 'I-didn't-know-we-could-hide-there' surprises. This, my friends, is like setting the thermostat before a New England winter. It ensures no one freezes or sweats too much, by agreeing to minimum and maximum limits on the arbitration award. Essentially, it prevents the parties from getting frostbite or heatstroke from an extremely low or excessively high award.

I hope this offers a clearer view of the mediation and arbitration landscape, with some Massachusetts-specific signposts. The road to dispute resolution can be tricky, but with the right guide, the journey can be less daunting and possibly even enjoyable. Remember, not all those who wander off the litigation highway are lost. But, a panel, though more expensive and potentially slower (think herding cats), offers diverse perspectives, just like an orchestra gives a fuller sound than a lone trumpeter.

As far as process goes, well, the arbitrator or mediator will have you sign a document before things begin. (Big surprise, something to sign). Basically, you have to agree that you will not use anything that happens during the dispute resolution if everything goes south and there is no resolution. So, what happens or what is said is not evidence at trial, or even at a hearing if you try to overturn a binding decision.

At the start, if it is not a binding decision, you will make your pitch and they will make their pitch. You will then be separated, and the arbitrator or mediator will go from room to room, (sometimes called a caucus), and try to get the parties to agree.

If it’s binding, there is no reason to split up. You make your pitch, and the arbitrator or mediator will make a decision.

And there you have it: the wild world of mediation and arbitration, served up with a side of Massachusetts-specific quirkiness. It’s a lot to digest, but hopefully, this gives you a taste of what these processes can offer. While it’s certainly not as tantalizing as Aunt Mildred's pumpkin pie or as final as Grandpa Joe's Thanksgiving verdict, it's a viable alternative to the court's bureaucratic indigestion. So, dig in, dear readers, and remember always save room for compromise!