Many who confront the legal system for the first time, voluntarily or



involuntarily, are faced with having to decide the forum in which their

dispute will be resolved. In some instances, the forum in which a

dispute will be resolved has been pre-selected by the parties however,

more often than not, litigants will make their forum selection only

after a dispute has actually arisen. It is therefore important to have

an understanding of the difference between mediation, arbitration and

trial and the benefits and drawbacks of each. Often times, the forum

selected will dictate how quickly and effectively the dispute is

resolved.

is a voluntary process wherein two or more parties to a dispute

try to resolve their differences with the assistance of a neutral, disinterested

third party such as an attorney or retired judge. In most instances, the cost

of the mediator is shared equally however, this is not always the case, especially

where one party has an interest in seeing the matter resolve and offers to pay for

the mediation in order to entice the other party to attend and partake. These days,

there are numerous private mediation centers including, but not limited to, at least

in the Southern California area, AAA, JAMS, Judicate West, and IVAMS. The cost

of retaining a mediator to assist in resolving your dispute will vary depending

on such factors as the experience level of the mediator, how busy he or she

may be, the nature of your dispute, the complexity of the issues presented, and

the number of involved parties. Most private mediation centers bill for their

mediator's time on an hourly basis however, others bill a flat fee for a half or

full day.

Mediation is not, like arbitration or trial, adversarial in nature. As

such, parties to a dispute can mediate their differences without

counsel. Anything said during mediation is inadmissible in court. Thus,

it is not uncommon to see parties who partake in a mediation sitting

together in a conference room and, with the assistance of the mediator,

working toward identifying the contested issues and then brain storming

to resolve them. Mediation is a give and take process where there is no

declared winner and no declared loser. For mediation to be successful,

each side must give up something. Mediation is non-binding unless the

parties agree to be bound by whatever result is achieved. Mediation is

favored and recommended in cases involving neighborly disputes, family

disputes, or where parties to a lawsuit involving a claim for monetary

damages believe that with the intervention of a neutral third party, a

settlement can be achieved. Mediation is often the easiest and most

cost effective way to resolve disputes. The major drawback to mediation

is that if no resolution is achieved, the other side will, by virtue of

your disclosures in mediation, have a better feel for what theories or

claims (and strengths and weaknesses thereof) you might proffer in

litigation.

differs little from a bench trial (a trial in which the judge serves

as trier of fact as opposed to a jury fulfilling that role). Arbitration

may be binding or non-binding. Binding arbitration is usually by

agreement of the parties with each expressing, in a writing, a

willingness and commitment to be bound by whatever decision the

arbitrator may reach. Non-binding arbitration affords the losing party

the opportunity to seek a trial de novo (a trial on the merits without

regard to the arbitrator's findings) however, there are often penalties

imposed on the party requesting the trial de novo if he or she does not

achieve a better result in trial than achieved in arbitration. Private

organizations like AAA, JAMS, Judicate West, and IVAMS similarly offer

arbitration services. The cost is similarly based on an hourly rate or

half or full-day basis.

In advance of arbitration, with all sides usually represented by

counsel because arbitration is an adversarial proceeding, the

arbitrator will be provided briefs detailing the positions, arguments

and demands of each side. The rules of evidence in arbitration

proceedings are quite liberal. As such, documents and other writings

that might be excluded from evidence in a trial will be received and

considered in arbitration. Arbitration will proceed in whatever fashion

the parties desire. This may mean evidence is introduced through the

admission of exhibits and by way of live or recorded testimony or

simply by way of offer of proof (usually an attorney explaining what

the evidence is). The proceeding is much more formal that a mediation

and, as above, is adversarial in nature. Once all the evidence is

received, the arbitrator will usually take the matter under submission

and render an opinion and/or issue an award shortly thereafter. This

opinion or award is final and may only, under very limited

circumstances, be challenged or appealed.

Arbitration proceedings are usually considerably shorter than a trial

and will often be less expensive though that is not always the case.

The major drawback to arbitration is that you have trusted the outcome

of your case to a single trier of fact giving up your right to a jury.

This may be fine in some cases however, where passion and prejudice may

play a role in how the case is decided, it may be advantageous to you,

depending on which side of the case you are on, to try the case to a

jury of twelve.

Trial is what we most frequently see on TV. It is the subject of

virtually every hit crime drama of our time from "LA Law" to "Boston

Legal" to "Law & Order". In the absence of a plea agreement, trial

is where virtually all criminal cases are adjudicated. In the civil

arena, trials are less frequent. In fact, most, upward of 90%-95% of

all litigated civil disputes settle in advance of trial. Trial is risky

as there is no way to tell what a jury (should you chose to proceed by

way of jury trial) will do with a case. Simple things such as demeanor,

appearance, accent, etc. can have a dramatic effect on how a jury views

a case. If there is anything certain about a jury trial, it is the

uncertainty of the outcome. For that reason, at EISENBERG LAW GROUP we

work hard to resolve disputes before trial. This is not to suggest that

we at EISENBERG LAW GROUP avoid or shy away from trial. Quite the

opposite! Messrs. Day and Eisenberg have over 30-years combined trial

experience and a fabulously successful track record for favorable

outcomes. Trials however, are expensive and carry with them not only

the uncertainly referenced, but the risk of appeal which, at present,

can tie a matter up for 2 ? years. In addition, trials can be long and

drawn out. Many judges only hold trial 3-days a week which means a

5-day trial with jury selection and deliberation can last 2-weeks or

more. For these reasons, we at EISENBERG LAW GROUP consider use of all

available forums for resolving your dispute placing your interests

above all else.