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Mediation, Arbitration, and the Court System, or How to Just Say “No”

On Behalf of | Nov 4, 2015 | Uncategorized

Chess Pieces

Arbitration seems to be in the news lately.  Most of us are unaware of it, but state courts across the United States are swamped with family law cases. This is true in Colorado as well. In the judicial district I am in, over 7000 family law cases are filed each year. This has led the courts in Colorado to issue mandatory alternative dispute resolution orders. Alternative dispute resolution takes the form of mediation, arbitration or mediation/arbitration. The intent behind such orders is to help the courts manage the volume of cases and to help people reach their own solutions to their issues.  Mediation is generally with a third party who attempts to negotiate a mutually acceptable solution, and the mediator cannot force a solution on the parties. In arbitration a third party arbitrator can weigh the facts and impose a finding, and mediation/arbitration is a variation of the two wherein the mediator/arbitrator can make a decision if the parties cannot reach an agreement by themselves. While somewhat simplified the definitions noted above are satisfactory for our purposes. Most cases do reach a settlement in mediation, and mediation is a valuable tool for resolving cases quickly. The danger in mediation is that on occasion one party will feel pressured to accept an agreement they feel uncomfortable with. If this is the case do not agree until all your questions have been resolved. And if they are not, walk away. You can always change your mind if you have not yet signed an agreement. Once you have done so it is very difficult to make a change to an agreement. This is not true in arbitration. Once an arbitrator makes a decision that decision is binding on the parties unless a court finds the decision was made without a basis in the law. This does not happen often, so it is important you know what authority a third party mediator or arbitrator has before you proceed. This is especially true because many people use the terms interchangeably and often do not understand the role of the mediator or the arbitrator. If you are going to use an arbitrator understand that many do a great job, but also realize that just as in a court you will be expected to know the rules. If you do not you could end up with a result you are unhappy with. Because of the aforementioned I think it is important to at least consult with an attorney so that you can understand the alternative dispute resolution process. Until you do you do not know what your case is worth; you do not know what a fair settlement looks like, and as a consequence you may be forced into an unfair settlement. Equally important, you will find out what to look for and what to avoid. So…what are you to do if ordered to participate in mediation. Know that in mediation you can just say no to something you do not understand. The discussions and settlement terms are confidential and except in special circumstances the court will never know about them unless an agreement is reached. In arbitration the arbitrator will make a decision and that decision will be binding, so if you are uncomfortable or do not understand the process say no before you agree to a process that could result in a decision you are unhappy with. Call us if you need to talk; we can help.