Busy court dockets can result in years passing before cases can get to trial. Legal fees and expenses for a trial can total tens of thousands of dollars. Trial requires intense involvement of the parties at great emotional cost, as well as prolonged periods of time away from work and family. Trials are risky, with outcomes in the hands of a judge or jury. Trials are open proceedings which can be viewed by the general public and covered by the media.
All of the above are potential pitfalls involved with taking a civil case to trial. As a result, Alternative Dispute Resolution (ADR), including Mediation, Arbitration and High-Low Arbitration, have become popular and effective means of getting civil cases resolved without the time, expense, delay, stress and publicity of a trial.
Mediation
Mediation is a form of ADR which is conducted by a third party, usually a retired judge or very senior and experienced attorney, who tries to bring the parties to a negotiated resolution. In Mediation, the mediator does not have the power to impose a resolution on the parties. Instead, the mediator acts as a facilitator who discusses the respective strengths and weaknesses of the case with the parties with the goal of reaching a final resolution.
Traditionally, the parties will submit materials to the mediator in advance of the Mediation session so that the mediator understands what issues are in dispute and the settlement positions of the parties. The actual Mediation usually starts with a joint session with everyone present so the parties can explain their positions. Thereafter, the mediator usually puts the parties in separate rooms and travels back and forth between the two to discuss the case and try to negotiate a resolution.
Although Mediation can be costly (the mediator usually commands a significant fee) and there is a possibility that the dispute might not settle because Mediation is non-binding, Mediation has proven to be a very effective means of settling cases.
Arbitration
Arbitration is a form of binding ADR in which an arbitrator (again usually retired judge or senior attorney) hears the case and imposes a decision. Arbitration can occur either because it is required by a contract between the parties or because the parties voluntarily choose to arbitrate rather than proceed to a trial in court. Some advantages of Arbitration over a trial include convenience for the parties (agreed upon location, date and time of hearing), less formality in the proceedings and finality (usually no appeals will be viable). The risk of Arbitration as opposed to Mediation is that an arbitrator decides the case rather than tries to negotiate a resolution.
Nevertheless, with Arbitration, the parties can be assured of a swift and, usually, final decision.
High-Low Arbitrations
To reduce the risk of the final decision in an Arbitration, parties often impose “High-Low” parameters. In a “High-Low” Arbitration, the parties will agree in advance that, regardless of the actual decision of the arbitrator, there will be High and Low parameters within which the award must fall. If the arbitrator’s award is higher than the agreed upon High number, it will be changed to the High number. If the arbitrator’s award is lower than the agreed upon Low number, it will be changed to the Low number. For example, assume that in a Personal Injury case the injured party and insurance company agree that the “High-Low” should be $100,000-$10,000. In such a case, if the arbitrator’s decision is between those numbers, it stands. However, if the decision is lower than $10,000, the injured party gets $10,000. If it is higher than $100,000, the injured party only gets $100,000.
The advantage of a “High-Low” Arbitration is that it reduces risk. The disadvantage is that it eliminates the chance of a “home run” victory for either party.