30 Mar 11 Myths About Mediation and Arbitration
I notice a lot of people are a little confused about alternative dispute resolution in general. Christian Slater once said, “As you get older you learn some balance and mediation in your life – that’s where I am right now. I feel pretty comfortable about things.” Well, he shouldn’t feel too comfortable because the word he was looking for was meditation. But why should he be any different when it comes to being a little confused. Here are the Top 11 Myths about Mediation and Arbitration.
- Arbitration is binding. No, it is not always binding. Some agreements specify for it to be non-binding.
- Mediation is non-binding. While that is literally true, that talking does not bind you, an agreement reduced to writing and signed by the parties is binding.
- Everything said in an alternative dispute resolution forum is confidential. There are exceptions including for a signed agreement, to prevent a crime, defense in a malpractice suit, and establishing legal defenses to formation of a mediated agreement.
- Mediators and arbiters have immunity. Again, there are exceptions including when the alternative dispute resolution is not court ordered and is not conducted by a certified professional or when the mediator or arbiter acts maliciously or in bad faith.
- The evidence code does not apply in alternative dispute resolution. Yes, it does apply in court ordered arbitration.
- Alternative dispute resolution applies only to lawsuits. That is not true, especially with mediation, which has gained popularity with students, professional and trade associations, and in business contracts.
- Arbitration clauses are always legal. Unconscionable terms (extremely unfair in procedure and substance) violate due process rights. Examples of terms court have found unenforceable include barring discovery of a disputed contract, reducing the statute of limitations to months or even weeks, a forum clause at some distant location like Los Angeles, and a severability clause following many far-reaching terms. That is, asking the court to let you try anything and then let know which terms you can get away with.
- Written agreements are enforceable by the court. This is only true if the agreement grants jurisdiction and is entered as a settlement agreement in the case, if there is one.
- There are the only 2 kinds of alternative dispute resolution (ADR). There are several hybrid forms too such as mediation-arbitration, where a mediator turns arbiter when parties fail to reach a mediated settlement.
- Having an attorney is not so important. Most cases settle while mediating. This when you mot need an attorney’s expertise. An attorney can be invaluable in negotiating your best possible settlement by presenting a strong legal argument that settlement is justified by the risk and expense of trial. Do not try this on your own.
- A mediator is a modern concept. Check your bible. The concept of mediators is mentioned in both the Hebrew and Christian scriptures.