Alternative Dispute Resolution (ADR)
Our years of litigation and transnational experience for both plaintiffs and defendants allow Kreis Enderle attorneys to not only capably and competently represent our clients, but it also to serve as effective mediators and neutrals, helping parties involved in the even the most contentious disputes to resolve their conflicts more quickly and cost-effectively than prolonged courtroom litigation.
Alternative dispute resolution takes many forms including mediation, arbitration, and early neutral evaluation. No matter the venue or type of proceeding, advocates and litigants alike have come to rely on the subject matter expertise, procedural and evidentiary knowledge, impartiality, discretion, and creativity of Kreis Enderle’s ADR professionals.
Types of Cases We Mediate:
- Insurance and Subrogation Issues
- Personal Injury
- Probate and trust disputes
- Breach of Contract and Commercial Litigation
- Real Estate, Land, and Water Disputes
- Family Disputes
- Construction Litigation
- Shareholder and Partnership Disputes
- Trade Secret and Non-Competition Claims
- Labor and Employment Issues
- Collections and Creditor Rights Matters
- Civil Rights Claims
- Medical and Professional Malpractice
- Product Liability
Why should the parties to a lawsuit consider mediation?
Mediation offers several benefits and advantages over courtroom litigation, with cost savings and expediency at the top of the list. Depending on when the parties agree to mediate, litigants can reduce or avoid the expense associated with extensive discovery, pre-trial proceedings, and a jury or bench trial. A case making its way through the court system can take many months or years, especially if there is an appeal, time that can be cut short when the parties submit to mediation in an earnest attempt to resolve their differences.
Mediation is usually a less formal affair than a trial, and the mediator can be more flexible and creative than a judge in facilitating an agreement and crafting an agreement between the parties. Unless the litigants agree otherwise, mediation proceedings and a resulting settlement are confident, giving the parties peace of mind that details of their dispute won’t be a matter of public record.
It’s also important to note that mediation is completely voluntary and non-binding, unlike other forms of dispute resolution such as arbitration. Also, in mediation, the parties can make their own decisions and often craft their own settlements, which is different than arbitration or a courtroom trial where the arbitrator, judge, or jury renders the final decision.
Which party pays for the mediator and how much does it cost?
Different mediators have different fee structures, though most charge an hourly or daily rate for their services, which includes not only overseeing the mediation proceeding but also preparing ahead of time. In most situations, the mediator’s fee is substantially less than the parties would pay their attorneys to take a case to trial.
According to the standards of conduct, a mediator in Michigan must disclose his or her structure in writing early in the process and split the fee proportionately among the parties. A mediator is prohibited from making his or her fee contingent on the outcome of the matter or establishing a fee as a percentage of the amount of money in dispute. A mediator may, however, adjust the fee depending on the complexity of the case.
How do the parties select and agree on a mediator?
All of the parties to a lawsuit must agree on the choice of a mediator; no one party can choose a mediator over the objections of another party. While that can make selection difficult, in the end, their agreement to mediate is a good first step to resolving their differences. By comparison, parties never get to choose the judge who presides over their case.
It’s important the parties – through their attorneys – decide on the mediator’s role and approach. Should the mediator provide a neutral evaluation or facilitate negotiations? How much leeway should the mediator have in determining the location, structure, and other details of the proceedings? Should there be a single mediator or more than one? How deep is the mediator’s subject matter expertise and is that critical to resolving the dispute?
One method used by the parties to a lawsuit to select a mediator is called “match and strike.” Counsel for each party generate their own lists of mediators, and in the process of comparing them to one another, they note the names that are common to each list and remove the names of mediators whom they feel would not be impartial or unqualified.
Are mediation proceedings and outcomes confidential?
For the most part, mediation is a confidential process, and the lawyers and mediator can draft a mediation agreement that prohibits disclosure of anything said in the course of the proceedings as well as the terms of a settlement. Even if mediation fails to produce a settlement, rules of evidence prevent any offers the parties make to resolve the case in mediation from being in court.
There are some exceptions to rules of mediation confidentiality, such as when a mediator is called to testify regarding statements or conduct of the parties that may constitute a crime, or if the parties expressly waive confidentiality.
How long does mediation take and who participates?
In most instances, mediation only lasts only a day or less though more complex matters might take several days or weeks. Where judicial proceedings or a trial have many formalities, mediation is far less involved and tends to move quickly once it gets underway, especially if the parties cooperate and act in good faith.
A mediation usually begins with the mediator calling a joint meeting of the parties, their lawyers, and in some cases, anyone authorized to settle the dispute on a party’s behalf such as an insurance representative or corporate officer. The mediator then explains the process and format, goes over confidentiality provisions and restrictions, and then allows the attorneys for each party to present their case and the specific issues in dispute.
Different from arbitration or a trial, the participants at a mediation are almost always limited to the parties, their attorneys, and the mediator. Rarely are witnesses called to testify or evidence formally introduced.
After the various joint proceedings, the mediator begins “caucusing” with the parties – meeting with them separately and in provide to assess their relative positions and arguments and helping them to develop possible settlement solutions. There can be several caucuses during the course of a mediation, as many as needed to either reach a mutually acceptable agreement or recognize that the parties are at an impasse that cannot be overcome.
At what point in a lawsuit should the parties consider mediation?
The parties can submit to mediation at any point in litigation, even before a case is filed. Many would argue that it’s never too early to consider mediation, and the sooner the parties agree to mediate, the faster and less costly the case will be. Mediation is most productive, however, when the parties have had the opportunity to gather enough information through discovery to analyze the potential risk- and recognition that settlement is a viable option to avoid it.
Can mediation be used to resolve conflicts apart from lawsuits?
Disputes arise all the time, but not every conflict should result in a lawsuit. Mediation gives disagreeing parties the chance to cooperate and find common ground without resorting to litigation. Examples of community mediation include conflicts involving students and school systems, small claims disputes, landlord-tenant issues, disagreements between friends and neighbors, and disagreements between business owners, customers and clients, vendors, and employees.