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Harrisburg Alternative Dispute Resolution Law Blog

Arbitration finding a place in the commercial finance sector

In commercial finance disputes, there has been a long-standing tendency to turn to litigation for resolution. This process can be time consuming, costly and—depending on the outcome—publicly damaging to company or individual reputations.

For decades, arbitration has been a tried and true practice for dispute resolution in many industries across the country. However, to date, its use has not really gained momentum in the commercial finance industry.

Do your homework: 4 things to find out when choosing a mediator

You’ve decided to use mediation to settle your dispute. If you’ve never used a mediator before, you want to make sure you find someone who’s a good fit for you and your case. Here are four things you’ll want to research ahead of time:

Is the mediator a subject matter expert? Expertise in a particular area isn’t required for all mediation cases. However, in some cases, finding a mediator with a certain background can be a necessity. For instance, if you’re involved in a real estate dispute requiring extensive knowledge in title insurance and land use law, you want to find a mediator who understands those concepts inside and out.

The chemistry of trust: can oxytocin enable successful mediation?

In his groundbreaking TED Talk that went viral, Dr. Paul Zak explored the ways in which the hormone oxytocin supports human interconnectedness. His findings have important implications on the field of mediation.

Oxytocin is a chemical produced in mammals, which is released under certain types of stimulus. When released, it increases happiness. It enables us to feel what other people feel. Oxytocin has been shown to increase trust and generosity in people without altering their cognition. It also creates a greater sense of empathy and an enhanced ability to connect with others.

Three key focus strategies to resolving a workplace conflict

A workplace is like a delicately balanced ecosystem. Most of the time, all individuals work in harmony with each other. However, when you throw a group of people with differing personalities, unique ideas and separate expectations into an office together, conflict is bound to arise eventually. In the face of such a clash, it’s important to refrain from doing anything that exacerbates the problem—which could ultimately result in mediation or even litigation.

Today we present three essential ways to focus your attention in order to effectively smooth over conflict in the workplace:

Protect yourself when signing an employment arbitration agreement

You aced your final interview, and your future employer has just offered you your dream job. Exciting news! You’re asked to come into the office to sign some pre-employment paperwork. But embedded in the stack is a document that gives you pause: an employment arbitration agreement.

When you sign an arbitration agreement for your job, you agree not to sue your employer for problems you experience in connection with your work. Instead, any issue must be handled through arbitration.

Employment arbitration agreement: what do you give up by signing?

Many non-union employers these days require their employees to sign an arbitration agreement before they are hired. What does this agreement mean, and what rights does an employee give up by signing it?

An arbitration agreement is a contract under which an employee waives their rights to sue over job-related issues such as discrimination, wrongful termination and breach of contract. Instead, employee disputes are handled through arbitration—a comparatively quick process in which an arbitrator (often a retired judge or attorney) hears evidence from both parties and then returns a decision on the matter.

What is a mini-trial?

Mediation and arbitration are two techniques commonly associated with alternative dispute resolution (ADR). Today we’ll examine a less known form of ADR called a mini-trial—a technique commonly used in large-scale business disputes.

A mini-trial has some similarities to mediation hearing. In both scenarios, each party’s case is presented, the results or non-binding, and it’s possible that no resolution will be reached. A key difference is that with mediation, the mediator is a neutral third party—who can be an attorney. The mediator acts as a facilitator to help both parties reach an agreement. With a mini-trial, each party has it’s own mediator—also typically an attorney—who acts as an advocate on their client’s behalf. The attorneys present their cases to a panel, which is often comprised of both parties involved in the dispute as well as a neutral intermediary. After the case is presented, the parties then try to reach an agreement. If this is not possible, they may permit the intermediary to put forth an opinion describing the likely result of pursuing litigation.

How emotional and economic losses impact mediation results

A study by the University of Chicago has examined the ways in which humans react to and evaluate different types of loss. The research finds that humans value emotional and economic loss differently when these losses are considered separately versus when they are considered in combination with each other. These different valuing systems lead to different outcomes in mediation.

Let’s say for example you live in an old apartment. Your building’s plumbing system has been around since FDR was president, and it’s in dire need of repair. Your landlord decides to completely re-do the piping—a massive project, which leaves you without running water for two weeks. Your apartment is unlivable. When you complain to your landlord about paying rent for an uninhabitable space, he becomes verbally abusive and threatening. You become concerned for your safety. Ultimately, you decide to move to a different apartment.

What can be done to ensure a mediation deal is enforceable?

At times, it can seem the law defies logic. Take the following scenario as an example. You and another party are in dispute over some issue. Maybe you have a difference of opinion over contract terms or a construction project. Maybe you need to resolve a parenting issue in the wake of a divorce.

Regardless, you undertake mediation with hopes of reaching a timely and cost-effective settlement. Agreement is reached. The paper work is drafted and signed. The next day the other side's attorney calls to report a change of heart. Does that make the mediation agreement unenforceable? If it is, is there something that could have been done to prevent things from falling apart?

Mediating high-conflict divorce may not be impossible

We have observed in previous posts that the use of mediation to sort out issues in a Pennsylvania divorce can present challenges. Because the process requires a willingness on the part of both parties to approach resolving disputed family law matters with an attitude of cooperation, mediation might not be for everyone.

Experts generally agree that one indicator of when this form of alternative dispute resolution might not be advisable is when one of the spouses has a high-conflict personality. That is, if one spouse finds myriad ways to put up roadblocks to settlement and seems bent on putting things on a track to litigation, mediation might be fruitless. But, before dismissing the idea entirely, it might be worth stepping back to consider some "ifs."

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