Charles P. Bauer

Published on : 2024-10-30

Arbitration and Mediation are alternative dispute resolution (ADR) methods to traditional in-court litigation. Most New Hampshire attorneys are familiar with litigation and mediation, but rarely consider using arbitration to effectively and efficiently resolve disputes.

Arbitration is a binding process, usually confidential, in which a neutrally selected Arbitrator conducts a hearing with counsel, witnesses, and documents, and applies the law to the facts presented in the hearing to render a written decision on the dispute for the parties. An Arbitrator is a decision maker who resolves the dispute for the parties in a timely and efficient manner. The Arbitrator’s written decision is ordinarily final and binding. The written order may be appealed only in very limited circumstances.

Whereas, Mediation is a non-binding process in which a neutrally selected Mediator assists the parties and counsel through numerous communications, in an effort to find a mutually acceptable solution. A Mediator is not the decision maker and does not resolve the dispute, but rather, facilitates communications between the parties and counsel, so a settlement might be reached if everyone agrees on all the terms and conditions.

In short, Mediation may or may not resolve the dispute, while Arbitration will resolve the dispute.

Some Misconceptions About Arbitration

Misconception: Arbitration should only be used to resolve large and complex disputes.

In fact, arbitration should be considered by counsel and parties in all types of disputes, no matter the size and scope, and whether the dispute involves straight-forward facts, law, and evidence, or not. Examples of disputes that should be considered for arbitration include:

• • • Personal Injury and Construction Matters
    • Business Contracts, Non-Competes, Trade Secrets
    • Wrongful Death, Automobile Accidents, Premises & Products Liability
    • Employment Litigation – Discrimination, Wrongful Termination, Constructive Discharge, Workplace Environment
    • Civil Rights, Police & Corrections Litigation
    • Insurance Coverage, Declaratory Judgment Matters
    • Environmental Concerns
    • Municipal Matters – Zoning/Planning Cases

Misconception: Arbitration is too formal, protracted, complicated, and costly.

In fact, arbitration is efficient, cost effective, and less formal and complex than litigation. The parties, counsel and Arbitrator usually discuss and agree on (i) the arbitration date, time, location (whether in-person, by video conference, or a blend of both); (ii) the extent of discovery, depositions, motions, witnesses, experts, exhibits, and disclosures, as needed, and; (iii) other arbitration policies and procedures, including:

• • • Estimate of how long the arbitration will take
    • Approximate number of witnesses, nature of exhibits, and experts, if any
    • How much time will be allotted for each presentation for openings, closings, direct, cross, and rebuttal
    • Whether a record will be taken of the proceedings
    • Whether and when briefs may be filed
    • Confirmation that there will be no ex-parte communications by counsel or parties with the Arbitrator; and the Arbitrator will not be informed of policy limits, coverage disputes, offers, demands, high-low agreements, or other “side agreements” or settlement discussions, unless mutually agreed-on

Misconception: Arbitration can only be used when a contract requires it.

In fact, arbitration may be required in some disputes where a contract provision calls for disputes to be resolved through arbitration, however, counsel and parties may mutually agree to use arbitration in almost all matters and at any time, before or even during pending litigation. Also, private arbitration may be used in place of large arbitration organizations called for in contract provisions, if counsel and parties mutually agree.

Misconception: Arbitration should only be used after a lot of litigation discovery is completed.

In fact, arbitration should be considered as soon as a serious dispute is discovered, and certainly before litigation is filed in court. Unwanted and unnecessary publicity often accompanies court-filed litigation, discovery, and trial. Private arbitration may avoid such unwanted attention. The arbitration process permits and regulates private discovery methods, including confidential depositions, documents, witnesses, hearings, and results.

Arbitration Rates

Arbitration rates are usually set on an hourly, half day, and/or full day basis, consistent with usual and customary rates in New Hampshire. Formal Rules of Evidence usually do not apply, as the Arbitrator uses professional experience and discretion concerning testimony and exhibits.

Selecting a Qualified Arbitrator

To increase the likelihood of an efficient resolution, it is important that an Arbitrator possesses substantive knowledge of, and experience in, the subject matter. Selection of an Arbitrator is particularly important when the factual and legal characteristics, as well as the personalities of all persons (including attorneys, parties, and witnesses) involved in the dispute are considered. In New Hampshire, there are several experienced and qualified attorneys who serve as Arbitrators. Ask colleagues for recommendations on an appropriate Arbitrator for your dispute.

To Litigate, Mediate, or Arbitrate is the Question

In litigation, the parties and counsel most often cannot select the trial judge or adequately control the lay jurors selected to decide the outcome of a dispute. Litigation is very time-consuming, expensive, and complicated for everyone involved. In New Hampshire, appeals from jury and judge decisions to the New Hampshire Supreme Court are allowed as a matter of right, which means added time, expense, uncertainty and emotional stress.

In mediation, no outcome of a dispute is achieved unless all parties agree on all terms and conditions of a settlement.

In arbitration, parties and counsel, with witnesses, documents, arguments, and written filings, can have their “day-in-court” and be heard by a fair, neutral, and selected Arbitrator, who will decide the outcome of the dispute for the parties with a clearly written decision. Appeals from Arbitrations are rare, limited, and unlikely.

Arbitration should be considered as a good choice to bring disputes to an efficient, confidential, and timely conclusion.

Charles P. Bauer is licensed to practice in New Hampshire.