| Arbitration and mediation are two types of | | | | parties are asked to sign a written "settlement |
| Alternative Dispute Resolution (ADR), which is a way | | | | agreement," which is binding and final. |
| to resolve conflicts outside of traditional lawsuits and | | | | Arbitration is more like going to court; it's a "mini-trial." |
| courtrooms. Sometimes attorneys are involved and | | | | An arbitrator hears evidence and listens to witnesses |
| sometimes not. | | | | and makes a decision, acting as a private judge and |
| ADR may be used in: | | | | jury. The arbitrator makes a decision, called an |
| Divorce or child custody/visitation disputes; Personal | | | | "award." The arbitrator's award is final, may not be |
| injury or accident cases; Consumer complaints (such | | | | appealed, and may be enforced like a court judgment |
| as car sales); Business and commercial disagreements; | | | | under Article 75 of New York's Civil Practice Law and |
| Complaints against financial and brokerage companies; | | | | Rules. |
| Landlord-tenant fights; Minor criminal matters. | | | | Why ADR? Because: it's inexpensive and fast. Stress |
| Mediation is conducted by a "mediator," arbitration by | | | | tends to be reduced because the result is quick and |
| an "arbitrator" (or in special cases, more than one | | | | final. The case is over and done with. |
| arbitrator acting together, called a "panel"). Arbitrators | | | | To resolve New York personal injury and accident |
| and mediators are neutral and have no interest in the | | | | cases, either mediation or arbitration may be used. |
| outcome of the proceeding, they are usually retired | | | | In mediation the plaintiff or claimant will send an |
| judges or lawyers being paid by the hour by the | | | | attorney who may or may not have the client |
| parties involved. | | | | attend. The defense will either produce an insurance |
| To proceed to arbitration or mediation the parties | | | | company representative or an attorney who can |
| generally use a private ADR company. The ADR | | | | telephone in to the insurance company for |
| session typically is held in a private office, rather than | | | | settlement authorization as the parties near |
| a courthouse. An agreement is signed, committing to | | | | agreement. Either side may submit hospital reports, |
| follow that company's arbitration or mediation rules. | | | | medical reports, photographs, or other materials to |
| New York's Civil Practice Law and Rules provides at | | | | assist the mediator in understanding the nature of |
| Section 7501: | | | | the case. |
| Effect of arbitration agreement A written agreement | | | | In arbitration, the parties present witnesses or |
| to submit any controversy thereafter arising or any | | | | evidence, although the neither side need have |
| existing controversy to arbitration is enforceable | | | | doctors or other expert witnesses appear and |
| without regard to the justiciable character of the | | | | testify, instead submitting their reports. This can |
| controversy and confers jurisdiction on the courts of | | | | result in tremendous cost savings. |
| the state to enforce it and to enter judgment on an | | | | A device often used in New York accident |
| award. In determining any matter arising under this | | | | arbitrations is the high/low agreement. This means |
| article, the court shall not consider whether the claim | | | | that the parties will agree, in advance, that the |
| with respect to which arbitration is sought is tenable, | | | | arbitration award will not exceed a certain amount, |
| or otherwise pass upon the merits of the dispute. | | | | and not go below a different amount. For example, if |
| A written agreement to submit any controversy | | | | the parties agree to a $50,000/$100,000 high/low |
| thereafter arising or any existing controversy to | | | | (more accurately it could be called a low/high), than if |
| arbitration is enforceable without regard to the | | | | the arbitrator awards an amount below $50,000, the |
| justiciable character of the controversy and confers | | | | plaintiff would still get $50,000. If the arbitrator |
| jurisdiction on the courts of the state to enforce it | | | | awards more than $100,000, the plaintiff would only |
| and to enter judgment on an award. In determining | | | | get $100,000. If the arbitrator awards an amount |
| any matter arising under this article, the court shall | | | | between $50,000 and $100,000, the plaintiff would |
| not consider whether the claim with respect to which | | | | get that exact amount. The existence of a high/low |
| arbitration is sought is tenable, or otherwise pass | | | | agreement is generally not disclosed to the arbitrator. |
| upon the merits of the dispute. | | | | The smart plaintiff's attorney will have the client sign |
| The difference between arbitration and mediation is | | | | off on arbitration and the high/low agreement, |
| that arbitration is binding and final and mediation is not | | | | because the client is limiting his or her potential |
| ' if the parties mediating can not be made to agree, | | | | monetary recovery, and giving up both the right to a |
| nothing is resolved. | | | | trial in court and the right to appeal an unsatisfactory |
| Mediation can be helpful in bringing two (or more) | | | | award. |
| sides together. Mediation procedures vary, but the | | | | Advantages of a high/low agreement: The insurance |
| parties usually meet first with the mediator to explain | | | | carrier for the defendant can ensure that an award |
| their positions. The mediator may then meet with | | | | will not exceed its available insurance company. The |
| each party separately, going back and forth to reach | | | | plaintiff can ensure that he or she gets something, |
| a resolution. Most disputes are settled, and often the | | | | and will not walk away empty-handed. |