Using an ADR Attorney
If you are looking to arbitrate or mediate a dispute, you may be wondering if it's a good idea to have an attorney for the process. The rules for hiring counsel are very different for these two forms of alternative dispute resolution than they are for litigation. In this section, you will find out more about how attorneys can play a role in different types of alternative dispute resolution such as mediation.
Do I Need a Mediation Lawyer for my Mediation Session?
Parties to a dispute may voluntarily enter into mediation. There are other situations, such as a divorce that involves a minor child, when courts require mediation as a matter of course. Although most of the contexts in which individuals find themselves in mediation do not require the parties to obtain their own legal counsel there are some situations in which it is a good idea to retain a mediation lawyer. Mediation lawyers understand the legal issues and are familiar with the mediation process. The process of mediation itself is, generally speaking, straightforward and easy to understand. However, if your property rights will be affected by the outcome of the process, professional assistance can be helpful in understanding the consequences of certain decisions.
When hiring an attorney it is important to ensure that they support the mediation process. Ideally they will have training in mediation. Some attorneys dislike mediation, since they are trained to be zealous advocates and are more comfortable in a winner-take-all fight. This attitude can be an obstacle to successfully reaching an agreement in mediation. An attorney can help with the mediation process by reviewing all written agreements prior to signing, providing legal coaching or consultation at various junctures, and by preparing materials for use during negotiation. It is helpful to discuss fees before hiring a lawyer; and both parties should also be clear about the role the lawyer will take and the expectations you have for one another.
Using Arbitration to Resolve Legal Disputes
Attorneys are more common in the context of arbitration. Arbitration is the most formal alternative to litigation. The disputing parties are expected to present their side of the case to a neutral third party who then renders a decision. Arbitrations have fewer rules than court cases. Arbitrators typically have more expertise in the subject matter of the dispute and more flexibility in crafting decisions. The format of an arbitration is very similar to that of a court case and includes opening and closing arguments, witnesses that present testimony, and documentary evidence. The rules of evidence and other procedural rules are much simplified, however.
In areas such as public sector employment disputes, court-annexed programs, medical malpractice disputes, and other contexts there is a trend toward compulsory arbitration. Certain categories of civil suits also include a compulsory arbitration component. This trend toward compulsory rather than voluntary arbitration is one reason why retaining an attorney to assist with arbitration is increasingly common. Although parties have a right to trial where they are not satisfied with the arbiter's award, they may also be held liable for court costs or arbitrators' fees if they don't reach a better outcome at trial.
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