Consider the following scenario: A Florida business or real estate deal goes bad. Tempers flare. Heated words are exchanged. As the disagreement becomes an argument and then a full-blown dispute, someone utters the words that effectively end any chances of the parties resolving the matter themselves – “I’ll see you in court!”
Years ago, this wasn’t an empty threat. As long as an aggrieved party demonstrated legal standing – or the ability to sue – the case went forward. Dockets got jammed and backlogs grew, taxing an overburdened court system even more.
Today there are other options. Alternative dispute resolution (ADR) – usually in the form of mediation and arbitration – helps alleviate the stress on Florida courts while providing people involved in business and real estate with effective options to expensive, time-consuming and unpleasant litigation. Here’s what you should know about the use of mediation and arbitration in South Florida.
What is mediation and how does it work?
Explained in its simplest terms, mediation is a process in which you and the other person or people involved in a business, real estate, or other type of dispute, meet to talk about the issue(s) at hand.
That being stated, several factors differentiate it from other types of negotiations. The first is that a specially trained, independent person called a mediator facilitates the discussions. His or her job is solely to make sure that the conversations stay on track and that everyone works to achieve consensus. He or she cannot provide any legal advice, and does not decide how the dispute should be resolved.
Another key characteristic of mediation is that you and the other party have complete control over what happens. Since no one else is deciding the outcome, it is up to you to come to a mutual agreement on some or all of the disputed matters.
Mediation is also a good option if you value your privacy. This is because it is usually a confidential process and as such is not held in a public forum, such as a courtroom. Furthermore, certain rules governing confidentiality apply if you are participating in court-ordered mediation or you are using a certified mediator. The Mediation Confidentiality and Privilege Act also apply as long as you and the other party/parties agree that the process remains confidential.
Although mediation is generally an informal process that offers considerable flexibility, any agreements reached through this process are typically legally binding and enforceable, as long as they’re documented in writing and signed by the parties.
Failure to come to an agreement does not preclude you from seeking other means of resolution. Within this context, it is important to note that if you don’t come reach consensus at your court-ordered mediation, the mediator must notify the court. It is also important to note that if you still cannot reach a settlement after mediation and prior to trial, the case will proceed as scheduled.
The use of arbitration in Fort Lauderdale business and real estate disputes
Some business deals include specific stipulations or provisions pertaining to the resolution of any disputes that may arise. In such cases, there may be provisions pertaining to the use of arbitration. Specifically, these provisions govern where the arbitration occurs, the number of arbitrators, which set of arbitration rules should be followed and more.
But what is arbitration? Simply put, it is a process that is similar to a trial, in which the people involved in the dispute present evidence and arguments to an individual or small group of people with expertise in that particular area. The arbitrator or arbitration panel will then decide the outcome based on the material submitted.
The advantages of arbitration when compared to litigation are that it tends to be less expensive and quicker; it gives you control over who decides the outcome; you do not have to provide as much material in support of your case as you would at trial; and it is typically final and confidential.
The most significant disadvantage of arbitration is that there are very few circumstances in which the outcome can be appealed. To do so you must prove that the arbitrator/panel engaged in wrongful conduct. Likewise, the parties can also agree in advance to “non-binding” arbitration. In such cases, the arbitrator’s findings are not final and the parties can only adopt the findings as “final” if they agree to do so at the conclusion of arbitration.
How we can help
If you’re currently involved in a dispute, whether about business, real estate, or anything related to money, ADR may be right for you. By utilizing mediation and arbitration for our clients, Eskander Loshak can often help you resolve your dispute faster and cheaper. To learn more about how we can help you, contact us today.