Alternative dispute resolution (ADR) is an alternative to traditional litigation. Instead of seeking resolution from a judge in the inherently adversarial courtroom context, disputing parties attempt to resolve matters using alternative means, most commonly:
- Mediation
- Arbitration
- Negotiation
In Texas, the Texas Dispute Resolution Procedures Act governs the powers of courts to redirect an unresolved dispute to the ADR context. Under Texas law, ADR procedures may be initiated on the motion of a party, or a motion of the court itself. ADR can be a valuable resource for disputing parties. However, ADR is not always the appropriate forum for dispute resolution. In choosing between the traditional courtroom context and ADR, the counsel of an experienced Texas ADR attorney will be invaluable.
Mediation
Divorce mediation is one form of alternative dispute resolution. It is a process in which an impartial party – the mediator – prompts communication between conflicting parties. The goal is to facilitate reconciliation, understanding, and settlement among the disputing sides. As a neutral party, the mediator refrains from providing opinions or judgments during the mediation process.
Frequently, the judge in a traditional, adversarial courtroom setting will order disputing parties to participate in mediation. While a litigant is not required to retain an attorney for mediation, it is advantageous.
Arbitration
Arbitration is another means of resolving disputes outside of the traditional courtroom setting. While more formal than mediation, arbitration shares mediation’s goals of reconciliation and settlement. In this process, parties turn over their dispute to an impartial party – the arbitrator – to review evidence, discuss the disagreement with the parties, and ultimately issue a decision. Frequently, this form of ADR emerges from contract provisions that establish arbitration as the forum for dispute resolution. When arbitration pertains to a dispute where large sums are at stake, it is wise to retain the services of a skilled and experienced Texas ADR attorney to ensure that the evidence and nature of the dispute is communicated clearly and persuasively to the designated arbitrator.
Having an attorney serve as mediator, negotiator, or arbitrator can benefit the ADR process. This is because disputes often involve complex legal issues, such as intellectual property laws or detailed contract provisions. Additionally, where each disputing party will see the dispute in a light most favorable to its own interests, an attorney serving as a neutral mediator can use his or her legal expertise to bring balance and fairness to ADR proceedings.
Not every dispute should be resolved via ADR. To gain a deeper understanding of whether a dispute should be resolved in a traditional courtroom setting, or through mediation, negotiation, or arbitration, speak with one of the experienced Texas ADR attorneys at Orsinger, Nelson, Downing & Anderson.
Gary has served as a mediator and arbitrator for more than 20 years. He has mediated over 500 cases and arbitrated in excess of 250 disputes. He serves as President of the San Antonio Chapter of the Association of Attorney Mediators. He has been selected for the Construction, Commercial, and Consumer Panels of the American Arbitration Association and sits on the panel of arbitrators and mediators for the International Institute for Conflict Prevention & Resolution. He has also been selected for inclusion in the National Academy of Distinguished Neutrals. Gary’s availability for mediations and arbitrations can be found on the NADN website: //www.nadn.org/gary-javore. He has consistently been selected by Best Lawyers In America for mediation and arbitration and was selected as Lawyer of the Year for Mediation in 2015 and 2018 and Lawyer of the Year for arbitration in 2017 and 2022. But a significant portion of his alternative dispute resolution practice comes from repeat customers (both attorneys and parties). His style as a mediator is not merely to convey offers back and forth but to help each side explore the pitfalls of moving forward with litigation by asking probing questions of the parties and their counsel. If the case does not resolve on the day of the mediation, he frequently continues to work with the parties to help them get to a resolution. This has resulted in a highly successful settlement rate. Gary conducts mediations in person, by Zoom or hybrid (some parties live some participating by Zoom). In arbitration, Gary is perceived as fair and thorough neutral, getting repeat business even from lawyers that have lost cases before him. Attorneys have reported that cases are tried in a fraction of the time it would take in a courtroom setting, saving each party significant fees and expenses.
What’s the difference between arbitration and mediation?
Mediation is nothing more than a structured settlement conference. The mediator works with the parties to forge an agreement. Typically the mediation begins with the parties participating in a joint session where each side has an opportunity to present their position. Following the joint session, each side is assigned a room and the mediator shuttles back and forth between the rooms to discuss the case and exchange offers. The mediator does not impose a result, but rather helps disputing parties achieve one. If the parties can’t agree, the dispute might move forward in litigation or arbitration, where a judge/jury or neutral arbitrator will listen to each side of the dispute, then render a decision.
In binding arbitration, parties agree to abide by whatever the arbitrator decides and there is no appeal.
Why arbitrate?
Arbitration is designed to reach a fair outcome without the expense and time of a trial. A principal advantage of arbitration is that the parties typically select an arbitrator based upon subject matter expertise. This allows the parties to try the case in a fraction of the time because it is unnecessary to “educate” the trier of fact. In addition, arbitration typically has streamlined discovery and the case is tried with relaxed rules of evidence, which expedites the hearing.
Contact a San Antonio, Texas arbitration and mediation firm
If your dispute has been referred for arbitration or mediation, contact Gary Javore at Johnson, Christopher, Javore and Cochran, Inc. Call 210-733-6235, or contact Johnson, Christopher, Javore and Cochran, Inc. online today.
Johnson, Christopher, Javore and Cochran, Inc. serves clients with contracts and litigation cases throughout San Antonio, Austin, Central Texas, South Texas, and the “Hill Country”.