Alternative Dispute Resolution

Mediation is now required by nearly every judge, prior to trial. Resolving disputes without extended litigation and court time will help reduce the costs of a legal action and a well prepared, experienced neutral mediator with a strong litigation background and trial experience can provide the additional assistance necessary to reaching an agreement with the other parties in your case. A new point of view may be what is needed to assist in reaching resolution without further court intervention. Our goal is to offer the best assistance for counsel and the litigants to resolve disputes quickly and effectively. We work with you on the complex, and the not so complex, issues to make it easier for litigants to understand the process and provide an additional perspective on their lawsuit from a neutral with a lot of experience whose only goal is to facilitate the resolution of all pending disputes.

What Is Alternative Dispute Resolution?

It is an alternative to a trial before the court or in front of jury. Alternative dispute resolution is a way to resolve disputes without protracted and expensive litigation that would need to be incurred if a case goes to trial and though appeal.   It also eliminates the uncertainty of an unpredictable verdict and the necessity of getting involved in the appellate process. Appeals are also quite expensive and unpredictable.  Mediation is the only way to avoid uncertainty and for the parties to make their own decision as to the outcome of their case, instead of relying on 6 unknown jurors or an unfamiliar judge.

Some of the most important components of the process include the following:

• Evaluation of both sides of the situation and presentation of arguments and evidence
• Negotiation of potential outcomes and acceptable resolutions of the situation
• Conciliation, a process in which the emotional stakes are deliberately lowered and tensions are addressed to encourage a more collaborative and cooperative atmosphere
• Agreement on a mutually acceptable solution for the situation and the conclusion of the process
• Alternative dispute resolution arrangements may be binding or non-binding and may include both mediation and arbitration.

Mediation

A successful mediation will reduce the costs of litigation.  A neutral mediator having reviewed submissions from all parties will be fully prepared to discuss the issues that need to be determined for the parties to successfully resolve the lawsuit. The neutral mediator will be involved in discussions between the parties to the dispute and their counsel, and act as a facilitator to help bring the matter to conclusion, if possible.  Mediators do not make decisions as to which party has the better claim or better defense. Instead, they discuss the legal issues with counsel and the factual issues with the parties.  After an initial meeting with all parties and their counsel,  sometimes with opening statements from both sides, the mediator will then meet alone with one group and their counsel, in what is identified as a caucus.  Whatever is discussed in caucus is privileged and following the caucus the Mediator can only provide information to the other party if specifically authorized to do so in the caucus.  The Mediator will then meet with the opposing parties and the Mediator will go back and forth with the respective parties in an effort at complete resolution.   Perhaps, one side has a “smoking gun,” as yet undisclosed, which helps to explain whom others might think of as a recalcitrant position. Those are the type of things discussed in caucus that once analyzed from a neutral perspective may soften the client’s position.  Indeed, sometimes just hearing the issues stated out loud from the opposing party across a conference room table can sometimes lead to resolution. A legal claim sounds different when articulated by someone who is not taking your legal position. That can change a parties perspective about continuing the case.  The role of the Mediator is to assist in this process and encourage positive communication and avoid, as much as possible, negative confrontation. A successful mediation results in the final resolution of an action. Or, in multi-party litigation, we may be able to resolve some of the issues with some of the parties and all of the issues with others. So, we can either eliminate some claims and shorten the time necessary for trial if there are remaining matters to be decided. Mediation is certainly worth the effort considering the cost of litigation in today’s legal world.

Arbitration

Arbitration is a more formal approach to dispute resolution and is typically binding on all parties. This process may involve a single arbitrator or a group of people chosen by the parties to oversee and decide the case. Each Arbitrator is separately paid and thus with a panel of 3 arbitrators, the costs will obviously increase.

Arbitration offers a few key advantages for participants and well as important disadvantages:

• The parties involved can select their own arbitration panel or arbitrator, which can be useful in highly complex or technical cases.
• The results of arbitration can typically remain confidential.
• The process of arbitration usually takes less time than comparable court proceedings; however, there is no appeal from the decision of the Arbitrator or an Arbitration Panel, except in unusual circumstances.

Binding and Non-Binding Decisions

Mediation is binding if the parties have reached agreement on all issues and sign a document at mediation so stating, and agreeing to dismiss the legal action completely with nothing further to occur other than dismissal of the case and compliance with the mediation agreement.

Unless provided otherwise, most arbitration results in binding decisions from the arbitrator or panel of arbitrators. Unlike Mediation, Arbitration has some of the same aspects as a court proceeding since the Arbitrator(s) will likely allow some discovery including document production and depositions of the parties or of expert witnesses. Mr. Berman has previously served as an arbitrator and on an arbitration panel, by agreement of the parties. He has also been involved in arbitration proceedings as counsel.

• Parties to a binding agreement give up their right to appeal or to take their case to court asking for relief after the decision has been rendered. The decision is final except in very rare circumstances.
• Non-binding decisions need not be complied with by the participants, which will likely lead to further litigation if one party feels that the decisions reached were incorrect.

Working with a very experienced, prepared and completely neutral lawyer is a good strategy to achieve the best results in binding and non-binding proceedings.  Mr. Berman has tried many high profile and complex cases. He knows what it takes to prevail at trial and is aware of the expense and the stress for all litigants. Fair resolution is best. Business and personal disputes of all types, including probate litigation, have been a big part of his life for the last 44 years. He has learned a lot during his career and applies that knowledge and experience to efficiently serve as an effective mediator and arbitrator.

How Richard Berman Can Help

Mr. Berman has been a mediator for nearly 13 years and a trial lawyer for more than 45 years.

As a partner in an AMLaw 100 firm, Mr. Berman’s last hourly rate was $630 per hour and was scheduled to be increased at the time he retired from that firm. His current rate is $350 per hour as he enjoys  resolving disputes, and using his experience and expertise at a reasonable rate. He has proven experience in dealing with a large variety of litigation matters and  successfully trying cases in the State of Florida and New York.