In the last couple of decades or so, mediation and arbitration have become very popular methods to resolve disputes and avoid the uncertainty and costs of full blown litigation. In 2001, having participated in many mediations as a litigator, and having informally mediated several disputes between parties as the disinterested neutral, Glenn Curran undertook formal training and was certified by the Supreme Court of Florida as a Circuit Mediator. He later became qualified by the Florida Supreme Court as an Arbitrator and now he even mediates and arbitrates disputes assigned to him by the Florida Bar.
Mediation, arbitration, and similar forms of “alternative dispute resolution” handled properly can be the best way to resolve serious situations both before and after the institution of litigation. Handled improperly, however, they can be an expensive waste of time at best and strategically detrimental to your litigation at worst.
PreSuit Mediation/Arbitration. If you are a prospective client, or an attorney representing a client considering litigation, but concerned about the costs and time commitment involved in full-blown litigation, you may want to consider “pre-suit” mediation or arbitration. Oftentimes, when the parties get together in this setting before they have invested tens or hundreds of thousands of dollars in litigation, there is a common purpose even amongst enemies: To save money and time. If this is remotely interesting to you, please give us a call and let’s discuss it!
Specific Areas of Experience in Mediation and Arbitration. In addition to being qualified to serve as a mediator and arbitrator in almost all types of litigation, Mr. Curran has important experience in four areas:
Business Law. With more than thirty years of litigation experience focused largely on corporate disputes, Mr. Curran is very familiar with the business needs and requirements involved with resolution of serious business situations. (For a more detailed list of his corporate experience, see About CLG.)
Family Law. Having practiced in this area for many years, both as a litigator and mediator, Mr. Curran has come to understand the unique challenges to Family Law cases. Family law cases have fairly-well defined parameters, but each case really does have its own special (perceived) needs.
Christian and Church Disputes. These disputes are particularly difficult. Not only are the parties constrained by the laws of civil government, but Christians must deal with ecclesiastical authority and the authority of Scripture as well. This can be a very difficult task. Matthew 18:15ff sets forth the general procedures for conflict resolution, but questions often still remain. Should Christians ever sue each other? Can they sue “non-believers”? How does Scripture apply in today’s litigious society? Often churches (and/or their members, deacons, elders, ethics commissions, or even pastors) are not equipped to handle and resolve disputes effectively while staying within the bounds of both Scripture and the civil laws. Sometimes, even if properly equipped or trained, the persons involved are conflicted beyond their ability to deal with a situation fairly, or at least without the appearance of impropriety. Mr. Curran, in addition to his legal training and experience, is also seminary educated and an ordained Ruling Elder and has served on or represented the boards of several church and religious organizations. Mr. Curran understands the very unique needs of resolving these types of controversies. (In 2008, Mr. Curran formed ControlAltDispute to meet what seemed to be an extreme need for Christian alternative dispute resolution. Time and time again he found Christians disputing with, even suing, other Christians because of the perception that they had no alternatives. This kind of conduct, however, is contrary to the Scriptural plan for dispute resolution. If you would like to learn more about this, please visit ControlAltDispute.)
Yachting Disputes. Do you have a dispute with a yacht brokerage or relating to the purchase or sale of your yacht? Mr. Curran is not only a licensed attorney and a certified circuit mediator, and not only has he represented several boat manufacturers, but for several years he was a licensed yacht broker and the President and Co-Founder of a local yacht brokerage. If you have a yachting-related dispute, Mr. Curran is uniquely experienced to help with its resolution.
What does mediation or arbitration cost?
If the mediation doesn’t resolve the dispute and I end up in court, can I hire you to represent me?
While it might be possible to conceive of a situation where this could happen, the answer is almost always going to be “no.” Your mediator is very likely to have learned “secrets” or “strategies” during the mediation from one or both parties which is going to present the mediator with an ethical prohibition against representation of one against the other. There is such a thing, however, as “med-arb” where the parties try to mediate their dispute first, but in the event that the mediation fails, the matter goes straight to arbitration where an arbitrator will make a binding decision. If this is interesting to you, be sure to discuss it at the very beginning with us.
Can you mediate between parties if one or more are not represented by an attorney?
Legally and ethically speaking, no party is required to retain legal counsel for any proceeding before a mediator or arbitrator. Having said that, however, having legal counsel can be invaluable in assisting with “creative” settlement offers during a mediation and is to be greatly encouraged. There are several reasons, but one of the bigger reasons for this prohibition is that mediators – even if they are also lawyers – are not permitted to give legal advice while they are acting as “mediators.”
Who can attend a mediation?
Other than the mediator, only the parties themselves need to be there. Attorneys, of course, are welcome and encouraged, but you do not need to have counsel to participate in mediation. In some limited instances, a representative of a company may appear if that representative has the full authority to settle and bind the party, but this must always be cleared ahead of time with the mediator and all other parties. In some other instances, non-parties may be present for some or all of the mediation, though this is generally discouraged and must be cleared with the mediator (and probably the other parties) as soon as possible before the mediation.
Do we have to do this at any particular location?
A mediation or arbitration can technically occur anywhere, but a “neutral” ground is usually recommended so that no party feels at a disadvantage.
For mediations, it is important to have a conference room sufficient to accommodate all the parties at one time for the initial part of the mediation, plus separate rooms for the parties to discuss things privately. (In other words, for a typical two party mediation, one conference room and one additional meeting room would be required.) These separate “caucus” rooms are where the parties typically spend most of their time. Family law mediations are often conducted in two separate rooms for the entire mediation, depending upon a number of factors unique to some family law situations.
For arbitrations, on the other hand, the large conference room is the only real “need.”
We, of course, have the necessary conference and meeting rooms available, plus plenty of free, covered parking, and restaurant downstairs, and several eating establishments next door (Starbucks, Dunkin’ Donuts, Subway, Chipotle, Thai Bayshore to name a few).
Still, sometimes it makes sense to conduct the mediation or arbitration at another location all depending upon the parties’ perceived needs and the availability of necessary space.
Is a mediated resolution legally ‘binding’?
If the parties reach a resolution in mediation, that resolution will be reduced to a writing signed by all the parties at the close of the mediation. This writing is a contract and is as binding and enforceable as any other written agreement. There is no “appeal” per se, though conceivably a party could seek to declare the contract unenforceable if there are severe enough circumstances (e.g., physical duress). We have never had that happen and courts generally look very skeptically at anyone trying to get out of a mediated settlement for a number of important reasons.
Is Mediation all confidential?
As a general rule, what is said in mediation, stays in mediation. Confidentiality is a very important part of what makes a mediation work, so the legislature and the courts are very concerned to keep it confidential. Mediators generally encourage open and frank discussions and disclosures and the parties generally do not have to worry about hearing things like this later in court: “But he admitted in mediation that he . . . .” or “But she already offered me more than that in mediation . . . !”
Having said that, there are some very limited exceptions where confidentiality is not preserved such as disclosure of child abuse, plans to commit violent crimes, etc. (If you have any specific concerns about confidentiality, be sure to raise the topic with your counsel ahead of time.)
What is the difference between ‘Mediation’ and ‘Arbitration’?
While there are various kinds of mediations and arbitrations, some “general” differences and similarities apply. We must say “general” because of the wide discretion given to the parties themselves to set up the parameters of any given mediation or arbitration. For this reason, it is critical for each party to understand (preferably through his own legal counsel) the particular rights and obligations for his particular situation.
We made this “Differences Between” Chart to highlight the general difference — but again, do not rely on this chart as any form of “legal advice” from us because every case is different!
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