Frequently Asked Questions

Get informed of your legal options

As you decide whether to pursue alternative dispute resolution (ADR), you need to weigh the strengths and weaknesses of each approach over courtroom litigation.  As you research your options, you may have questions or concerns.  Do not hesitate to call New Jersey mediation lawyer Jerry D. Goldstein to learn more about his qualifications as an ADR representative and discuss his recommendations for your case: (973) 595-5727.

These answers are general and not intended as legal advice.  Speak to a licensed attorney, mediator, or arbitrator for detailed advice related to your case.  For your reference, Mr. Goldstein answers some frequently asked questions about alternative dispute resolution below:

• What is the difference between mediation and arbitration?

  The main difference between mediation and arbitration revolves around the question of who has the authority to decide the matter.   Mediation gives the disputants themselves the authority to resolve the conflict.  If mediation fails, the parties can proceed to court.  In arbitration, the arbitrator – like a judge – decides the issue based on his or her understanding of the facts.  In binding arbitration, the arbitrator’s decision usually cannot be repealed in a court of law.

  Another difference between mediation and arbitration is that mediation is less adversarial in nature than arbitration.  Mediation promotes amicable resolutions to disputes while arbitration often encourages each party to defend their own interests at the cost of the relationship.

• Why hire an arbitrator instead of letting a judge decide?

  Disputants select the person qualified to serve as the arbitrator – especially, when an issue involves highly-complex concepts, technologies, or principles.  Arbitrators – like judges – usually decide the outcome of arbitration, so it is vitally important to choose the arbitrator wisely.  However, once the selection is made, the arbitrator has the ultimate authority to decide the matter.

• When do I hire a facilitator?

  Facilitators move discussions forward when you have reached a stalemate or standstill.  The facilitator helps control the group dynamic by giving everyone an opportunity to articulate their perspectives.  The end-goal of facilitation is to achieve actionable next-steps that move the project or agenda forward.

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• What are the disadvantages of mediation?

  Mediation poses a problem when one party withholds information.  Unlike attorneys, mediators are not authorized to investigate the matter.  However, mediators can contractually obligate each party to disclose information relevant to the case.  Failure to do so could provide grounds for future litigation.

  Mediation also proves problematic when one party deliberately holds up the process.  By the time it becomes clear that litigation is necessary, the disputants have already wasted time and money in mediation.

• What are the disadvantages of arbitration?

  Arbitration is not necessarily faster, more effective, or less expensive than courtroom litigation.  Arbitration is good option only if your issue is so esoteric that it requires an expert with particular knowledge and background to decide the issue.

  In arbitration, you waive your right to pursue a jury trial and basically even the right to appeal.  The only way to reverse an arbitrator's decision is to prove that the arbitrator is guilty of corruption, fraud, or another circumstance that affects the arbitrator's impartiality.

  In most cases, appeals are highly unlikely and the arbitrator's decisions are upheld in a court of law.  To reduce your risk of an unfair outcome, consider obtaining a panel of arbitrators who are equally qualified to resolve your conflict.  While the cost can prove prohibitive, the outcome is more likely to be fair.

• What are the disadvantages of facilitation?

  Facilitation can be time-consuming to employ successfully.  It might seem easier to tell someone what to do rather than to wait for buy-in from each individual.  A good facilitator can empower the individuals to increase their involvement in the process and overcome the difficulties.  In the long term, the benefit of facilitation is that it improves overall performance and encourages teams to resolve conflict more effectively to the benefit of the business and the employer.

• Is ADR confidential?

  State laws vary on this issue.  Usually, all parties involved in ADR are only required to reveal information when:

  • Court-ordered to produce evidence or testimony
  • One party expresses the intent to
    
    • commit a felony
    • inflict bodily harm
    • endanger the safety of another

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