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Harrisburg Alternative Dispute Resolution Law Blog

Using alternative dispute resolution to resolve commercial disputes, P.1

Commercial transactions, to be successful, must be properly coordinated with a clear understanding between parties of their mutual obligations and rights. When the other party’s duties aren’t fulfilled, quickly addressing the matter is important in order to avoid the financial, reputational, and existential threats to the business that can result.

There are various ways commercial disputes can be resolved, whether through working the matter out privately early on, through litigation, or through alternative dispute resolution processes such as mediation or arbitration. Commercial mediation can be a particularly effective way to resolve commercial disputes. 

What can I expect from my mediator, regardless of training, background and style?

In recent posts, we’ve mentioned a variety of factors that need to be considered when selecting a mediator to handle a dispute. These include not only the training and experience of the mediator, but also his or her background, area of specialty, perspectives, biases and unique approach to mediation. Differences in these factors can certainly make a difference in the success of the mediation process, so a careful decision should be made.

No matter what training, background, perspectives or style a mediator has, though, there are certain things that mediators must do in the mediation process. First of all, mediators are required to inform the parties of several matters prior to beginning the mediation. This includes the cost of mediation, the process of mediation, as well as the benefit of obtaining independent legal advice.

Selecting a neutral mediator: some things to consider, P.3

We’ve been looking in recent posts at some of the factors that should be taken into consideration when selecting a neutral mediator. Last time, we focused on the importance of considering the specific style of mediation a mediation professional prefers to use. As we noted, it probably isn’t possible to clearly categorize every approach to mediation, but two common approaches to the process are evaluative and facilitative mediation.

A third approach to mediation, and probably one that is less used than the others, is often called transformative mediation. Whereas both evaluative and facilitative mediation are mediator driven approaches, transformative mediation is client driven. The aim of transformative mediation is essentially to empower parties to acknowledge and empathize with the other party. Unlike other forms of mediation, it does not have settlement as a hard goal, but instead emphasizes problem-solving. 

Selecting a neutral mediator: some things to consider, P.2

Last time, we began considering some factors worth considering when selecting a neutral mediator. As we noted, mediators all have different in terms of their education and training, experience, background, personality, and personal biases they work to overcome. All these factors should be considered when making a selection of a neutral mediator that is going to carry out the role most effectively in any given case.

Another important factor to consider, aside from those mentioned above, is that mediators all have a unique approach to the process of mediation. While it wouldn’t be possible to categorize every mediator as having a clearly defined approach, experts in mediation often speak about several different types of mediation: evaluative; facilitative, and transformative. Each of these styles of mediation involves a slightly different approach or focus, and can affect not only the way parties communicate, but potentially the outcomes that are reached as well.

Selecting a neutral mediator: some things to consider

Selecting a mediator is an important task for those looking to mediate a dispute. Mediators can vary in a number of different respects, including education and training, experience, style, and personality, and each of these things is important to consider in determining the appropriateness of a mediator for handling a dispute.

Pennsylvania courts require that mediators meet certain specifications, though there are no specific licensing or certification requirements. Mediator credentialing can vary at the national level, depending on the organizations with which the mediator is affiliated. Because of this, the specific level of alternative dispute resolution training varies among mediators.   

Resolving intellectual property disputes through arbitration, P.2

In our previous post, we began looking at using arbitration to resolve intellectual property disputes. The desirability of resolving intellectual property disputes through arbitration lies not only in the fact that arbitration can be less expensive and less of a hassle than litigation, but also in the fact that it provides parties privacy to resolve the dispute.

One point we made last time is that, although it is possible to resolve trademark and copyright cases in arbitration, arbitration decisions on these issues do not set precedent that can be applicable in other cases. The situation is similar with patent rights disputes. There is statutory authority for parties to resolve patent infringement and validity disputes through arbitration, but the award is unenforceable until the United States Patent and Trademark Office is given notice, and awards in such cases are only binding between the parties. 

Resolving intellectual property disputes through arbitration, P.1

Mediation and arbitration can be effective avenues for resolving a wide variety of disputes. Each dispute, of course, involves unique considerations, among which are included the positions of each party on the points in dispute, each party’s ability and willingness to enter into negotiation, the area or areas of law involved in the dispute, and the likely outcome of the case if it went to court.

One area where mediation and arbitration can be used effectively is for intellectual property disputes, those involving copyright, patent and trademark rights. For businesses, it is important to secure and defend these rights, and there are multiple ways to do this. One way of doing so is to enter into an agreement which mandates the arbitration of disputes concerning intellectual property rights. 

Medical malpractice mediation: considering some of the issues, P.2

In our last post, we began discussing some of the difficulties parties can face in medical malpractice mediation. As we noted, medical malpractice litigation can involve highly specialized knowledge and it is necessary not only for parties to establish a dialogue with each other that involves a mutual understanding about such matters, but which can also be understood and appreciated by the mediator.

While a mediator need not have firsthand experience in the medical profession, having a medical background can be helpful, as can experience handling medical malpractice litigation. Knowing what the parties will be facing should the mediation fail and they decide to take the dispute to court can help frame the negotiations in mediation, particularly in mediation styles which are more evaluative.

Medical malpractice mediation: considering some of the issues, P.1

Mediation can be a useful tool in a variety of types of dispute, from construction projects to divorce to employment and labor law matters. In most mediation cases, the goal is to help the parties discuss their positions, understand each other’s underlying interests and to negotiate a sustainable agreement that can be enforced as a contract in a court of law. Depending on the area of dispute, there can be various challenges to achieving this goal.

One area where medical malpractice mediation can be potentially challenging is that such disputes can involve highly specialized medical knowledge. The issues of determining the proper standard of care and causation can be particularly challenging. In litigation, expert witnesses are typically produced to address such matters, but it may be necessary to consult with experts in medical malpractice mediation as well. While mediation is not litigation, such matters can impact the course of mediation with respect to the solutions proposed and the terms to which the parties are willing to agree.

Wells Fargo insists its imaginary clients agreed to arbitration

Whatever you think about mandatory arbitration clauses, they require consent. The First Amendment implies that people generally have the right to “petition the Government for a redress of grievances.” In other words, in the U.S. it’s fundamental that participants in mandatory arbitration have legally waived their right to bring the case to court.

If you’ve been following the news, you’ve undoubtedly heard about the scandal at Wells Fargo. Under immense performance pressure, Wells Fargo employees opened some 2,000,000 accounts, often on behalf of existing customers, without the customers’ consent. Many of the victims were charged fees on those accounts, a fact that has brought on a storm of litigation.

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