Alternative Dispute Resolution – Mediation and Arbitration

/, Divorce Law, Estate Planning, Mediation/Alternative Dispute Resolution – Mediation and Arbitration

Alternative Dispute Resolution – Mediation and Arbitration

Mediation is in the news a lot lately, especially for divorce, as a more peaceful way to end a relationship. Mediation, however, is not just about ending relationships but part of a growing area of what is known as ADR – alternative dispute resolution. There are several types of ADR, Arbitration, Mediation and Collaboration. Generally ADR is faster and can keep costs down.  I’m covering the two types of ADR with which I am most familiar, mediation and arbitration.

Mediation

Mediation is one type of alternative dispute resolution. It can be a part of resolving conflicts that do not necessarily need to end the relationship between or among the parties. Some examples are small businesses (especially family businesses), disputes between contractors and homeowners and landlord/tenant or noise disputes. Often, there is a conflict, but for the sake of the business or contractual relationship it would be better to resolve the conflict out of court and in a way that the business still functions or the contracting job still gets done. As the conflict is kept out of court there is also a confidentiality factor as it is not a public record. Unlike divorce mediation, sometimes there are more than two parties involved in the conflict. There may even be more than two sides with several different positions. The job of the mediator is to help the participants facilitate solutions to their conflict that they will feel comfortable with. This usually leads to a greater and longer lasting compliance with any agreement reached.

Arbitration

Arbitration is another type of ADR where parties argue a case in front of an arbitrator (or a panel of arbitrators) and the arbitrator or panel decides the matter. The parties are entitled to be represented by attorneys. The main difference between arbitration and litigation is that the process is usually shorter and the rules are different from those in the courtroom. There are still rules and you want an attorney representing you that understands that arbitration is not a free for all. I once represented a client in an arbitration where the opposing parties attorney did not know the arbitration rules and much of their evidence was not allowed in because they just brought it to the arbitration rather than following the disclosure rules.  Many times contracts have what is known as an “arbitration clause” meaning you are giving up your right to sue in court and have to participate in arbitration. When you have a complicated contract it is advisable to read it and possibly have your attorney review it prior to signing. Aside from representing parties in arbitrations I have been on the other side as an arbitrator. I myself am on the Nassau County Matrimonial Fee Arbitration panel where we resolve fee disputes between attorneys and their clients.

Alternative Dispute Resolution in the Courts

Even within litigation more and more often, the courts are using ADR as a means to try to settle cases to save time and keep the court from becoming overwhelmed. For instance in the small claims court in my area, all parties must go to a court ordered mediator located right in the building to try to resolve their case prior to being seen by the judge.  In the Nassau county Supreme Court Matrimonial Center sometimes the parties are ordered to go to the court mediator to try to resolve custody issues. The parties may or may not have their attorneys present, it is up to them. Once custody issues are resolved many other issues in the case are easier for the court to deal with.

ADR is an increasingly popular way for people to resolve their conflicts.  Let us tell you whether we can help you resolve your conflicts by calling for a consultation today!

By | 2017-01-13T15:00:27+00:00 December 11th, 2015|Construction, Divorce Law, Estate Planning, Mediation|0 Comments

About the Author:

Deborah E. Kaminetzky is the founding member of Kaminetzky Law & Mediation, P.C. located in Cedarhurst and Garden City, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the American Bar Association (General Practice, Solo and Small firm Division and Law Practice Management Sections), National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Vice Chair of the General, Solo and Practice Management Committee, and is active in the Community Relations and Education Committee) and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.