Arbitration and Mediation
- By -
JAMES C. JOHNSTON
"Your Man In Fort Myers Florida"

Alternative Dispute Resolution

Disputes are a fact of every day life and every dispute is resolved in one way or another, from mortal combat ("might makes right") to acquiescence ("giving in"). Even concluding that a dispute cannot be resolved is, in itself, a resolution.

It is to our credit that we are able to resolve most disputes on a friendly basis, but there are those occasions in when, no matter how hard we try, we can't seem to work things out on our own. When that happens, it is to our dis-credit that the "American Way" is to "go to court!" As a result, there are so many disputes choking our judicial system that a civil suit frequently take more than a year and costs each party many thousands of dollars in expenses, many hours of time that could have been spent on constructive and productive endeavors and much grief.

Litigation was once the course of "last resort." That is no longer the case, but the high cost of judicial resolution of disputes (in terms of money, time and stress) has led many to a revisit alternatives ("Alternative Dispute Resolution" or "ADR"), primarily Mediation and Arbitration.

There Are Alternatives

Jim Johnston offers alternative ways to resolve disputes that can result in more cost and time effective solutions to your disputes, including mediation, arbitration and individualized methods tailored to your specific needs, for a wide variety of civil disputes, including, those involving contracts, commercial transactions and real estate transactions. As a mediator, he will act as a neutral third party who does not decide the dispute but who act as a facilitator in bringing parties together to explore alternatives and arrive at a mutually agreeable settlement of their differences. As an arbitrator, he will also act as a neutral third party who will hear the merits of the positions of parties then make a decision on the merits of the positions, much like a judge but in a more expeditious and less formal manner.

Mediation

Mediation is a non-adversarial process in which an impartial third person (called a "Mediator") helps parties to a dispute reach a mutually agreed resolution. Mediation is not a trial. It is much less formal and there is no judge or jury. It is "consensual" in nature, in that the parties must "consent" to any resolution. Although the process is voluntary and not of a binding nature, Mediation has proven to be an effective alternative to trial and has resulted in a very high settlement rate. Some estimate are that as many as 70% of the law suits can be resolved in mediation. The mediator's role is to assist the parties (I) identify and clarify issues, (ii) overcome obstacles to communication, (iii) explore alternatives ways to resolve their dispute and (iv) reach and formulate voluntary agreements.

Parties can choose mediation at any time before or after a law suit is filed. After a law suit has already been filed in Florida, the judge may require the parties to go to mediation before it can be tried. Local court rules require mediation in all civil cases before a trial date can be assigned. Anyone can be a mediator. In Florida, if a judge can only require mediation by a "Certified" (which requires both class-room training and experience). Jim Johnston is a Certified Civil and Family Law Mediator in Florida.

Arbitration

Arbitration, unlike mediation, is an adversarial process. In arbitration, an impartial third person or panel (the "Arbitrator") conducts a hearing in much the same way that a judge conducts a trial and then makes a decision based upon the merits of the evidence presented by the parties to the dispute. Decisions of the Arbitrator may be "advisory" in nature (serving as a barometer of what a judge might decide) or binding upon the parties. While more formal than Mediation, Arbitration is still less formal and faster than court proceedings and it also has the advantage of being private and confidential.

The Lawyers Role In Alternative Dispute Resolution

Lawyers play an important role in both mediation, arbitration and other forms of alternative dispute resolution. Under many circumstances, the assistance of a lawyer is essential even though the proceedings are less formal than judicial proceedings. Except for disputes involving very small amounts of money, Jim Johnston will not normally serve as mediator or arbitrator unless the parties to the dispute have the benefit of independent legal counsel.

Is It Legal?

Courts were intended to be the course of last resort and people are encouraged to resolve their own disputes outside of the judicial system.

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JAMES C. JOHNSTON

Arbitrator & Mediator of Disputes
1705 Colonial Boulevard - Suite D-1
Fort Myers, Florida 33907-1141


Telephone 941-939-0024
Fax 941-939-1297

Copyright © 1997 James C. Johnston

All Rights Reserved