Establishing favorable parameters (“high / low monetary limits”) and choosing fair and competent arbitrators (or mediators) is an important step in achieving a positive result for your client. The client must be made aware of the parameters that you believe are favorable. Once that happens, the client gives assent to the ADR based on your opinion.
Once you have successfully entered into an ADR agreement, you must then prepare for the arbitration and mediation. All copies of records and documentary evidence needs to be prepared for delivery to the arbitrator or mediator. A brief (and confidential) summary of the case should be included in the cover letter.
Most ADR companies will accommodate you regarding the time and place of the ADR. These companies provide a casual, yet professional environment for the client.
On the day of the ADR, generally the client is advised that they will need to provide brief testimony. Unlike a trial, the client needs some preparation for the testimony, but less is often more in this situation. Preparation on contentious issues is key, but the formalities of a trial are case aside in favor of a more relaxed “question and answer” session. For example, the client does not need to describe a photo as a “clear and accurate depiction” of whatever it depicts; rather the photo is in evidence and the client may testify in the narrative as to what is shown in it.
The ADR is a relaxed and less formal proceeding than a trial. Often the parties feel less anxiety because the outcome is established in monetary parameters. This takes the stress off the lawyers, the clients, and the trier of fact.
Generally an ADR will last 1 hour, although multiparty proceedings can last up to a full day. In light of the streamlining of testimony and evidence, the period of time spent in an ADR is negligible.
Once all testimony is finished and all evidence is admitted, the lawyers will provide a brief Closing Statement. Again, quite unlike a Closing Statement in a trial, these are often done in minutes.
The arbitrator will then close the proceedings and a decision will be rendered within approximately 30 days.
The decision is final and binding and the parties may not appeal the decision.
In the next blog, I will discuss the process of mediation.