This is a two-step procedure in which the parties begin with arbitration. The neutral makes a decision, sends the decision in an envelope without telling the parties the results following arbitration, then conducts a mediation. If and only if the mediation is unsuccessful, then the envelope is opened and the parties are bound by the written decision.
Resolution of a dispute subject to the decision of neutral third party. Decision is binding. Limited, narrow right to appeal. Binding arbitration is usually quicker, less formal, less costly and more private than litigation.
Known as "High-Low Arbitration," it is binding arbitration in which the parties have negotiated maximum and minimum recovery prior to the arbitration.
Similar to a mediator, this person affords the parties a mechanism for floating confidential settlement positions. The confidential listener will hear the parties' settlement positions and then decide whether the parties are within a reasonable range. If the parties consent, the listener can divulge information concerning their positions to the other side and assist in the negotiations.
Early Neutral Evaluation
Early neutral evaluation is a process that requires counsel, and frequently the parties, to attend a conference before a neutral who is an experienced attorney. It is often a court-annexed proceeding and closely resembles what would be an evaluative mediation. The process is non-binding, but the neutral is likely to give his or her advisory opinions concerning issues, settlement positions and the ultimate outcome of the litigation. Advisory opinions or recommendations by the neutral remain confidential and are not shared with the court unless the parties reach a settlement. Parties may also engage in private early neutral evaluation by selecting a substantive expert to meet with them before substantial discovery takes place.
Parties may choose to appoint a neutral third party specifically to perform the fact-finding function in their negotiations. The fact-finder conducts an independent investigation and typically has the expertise to give credibility to his or her findings.
Pursuant to Rule 706 of the Federal Rules of Evidence, the court can appoint a neutral expert to examine issues of fact and give testimony, subject to cross-examination, that is made part of the record.
Final Offer or "Baseball" Arbitration
A proceeding in which the arbitrator is required to choose between a demand and an offer. The procedure is designed to encourage the parties to be as reasonable and as realistic as possible in presenting their final settlement offers in order to avoid having their evaluations rejected by the arbitrator.
This process is identical to a summary jury trial. By prior consent of the parties, however, the jury decision is binding.
This is a two-step procedure in which the parties begin with mediation. If mediation is unsuccessful, they can convert the process to binding arbitration. This process saves time because the neutral will already have considerable knowledge of the dispute. Additionally, the threat of binding arbitration will often encourage the parties to settle voluntarily during mediation.
Mediation is voluntary, flexible, confidential, informal and non-binding. A neutral third party facilitates the negotiation, yet the parties never relinquish the power and responsibility for resolving the dispute. They maintain substantial control over the conduct of the process and complete control over the outcome. Optimally, mediation seeks to redefine the dispute as a problem to be solved to enable the parties to arrive at a business-driven solution. Because mediation is facilitated negotiation, the parties are free to engage in creative problem solving, preserve their relationships and work together to fashion remedies that are not available in litigation or any adjudicatory process.
A unique process that is often used in highly complex or technical cases, the mini-trial is a pragmatic process in which counsel argue their cases before a panel consisting of the neutral and the chief executives or high-level decision makers of the parties. Thereafter, the decision makers, now better informed, negotiate to define the issues, share information and pursue settlement.
In suits involving multiple parties, such as those resulting from toxic torts, environmental hazards and man-made disasters, traditional defense procedures can sometimes be inefficient and counter-productive. Cooperative case management among defendants can significantly reduce litigation costs, provide a more effective and unified litigation strategy and enhance ultimate outcomes. Equally important, defendants can avoid the "finger-pointing" that is often a prescription for a bad result by reserving their cross claims for a subsequent round of resolution through an agreed-upon process of ADR. Multi-party cooperation provides cost savings and efficiencies in central document management, shared retention of experts and investigators, joint research and discovery efforts and common motions and briefs. In addition, a skilled facilitator can play a key role assisting parties in negotiating an allocation of liability and/or agreeing to a private procedure for deciding allocation.
Used initially on major construction projects, the neutral expert, often called "project neutral" or "standing neutral," is a respected construction professional who is appointed by the parties before the project is initiated. The neutral expert is kept up to date on the project. When a dispute arises, the neutral can respond immediately, typically as a mediator, to facilitate resolution of disputes so that timely completion of the project will not be jeopardized.
Identical to arbitration, except the decision is advisory. The decision may assist the parties in achieving a negotiated resolution of a dispute by permitting parties to test the strength of their cases and obtain an advisory opinion as to the likely outcome at trial.
This is the process of having a retired judge or an experienced attorney try the case as a temporary judge. The decision of the private judge is binding and subject to normal review in the regular appellate courts.
Summary Jury Trial
In a summary jury trial, the jury renders an advisory opinion after an abbreviated, less formal, trial. There are no witnesses. After jury selection, the judge presides over presentations of the case given by counsel, who provide a shorthand version of the evidence by use of summaries and exhibits. Counsel may be permitted to question the jury at the conclusion of the trial to obtain a realistic view of how the case was perceived by the jury. Settlement negotiations immediately follow the trial.