How to Choose the Best Process to Resolve a Dispute

What kinds of disputes are best suited for mediation, arbitration, and collaborative law?

There is no easy answer to this question – matching dispute resolution processes to cases is more art than science. Among the factors that may be relevant are: (a) whether there are relationships that need to be preserved; (b) whether the parties are able to negotiate effectively; (c) to what extent do the parties need legal advice and representation in their negotiation; (d) whether the parties need a binding decision from a third party; and (e) how quickly do the parties need to resolve the matter.

Mediation provides a more expedient way to get to the negotiating table and reach agreement if the parties can negotiate effectively. Mediation also provides an opportunity for direct, face-to-face discussion of relationship issues.

Collaborative law can be an improvement over mediation in situations where the parties are uncomfortable negotiating directly, even with the help of the mediator. The collaborative law process may, in some circumstances, take longer, but the disqualification-of-counsel provisions in the collaborative law process agreement operate as a buffer against litigation if the negotiations are difficult. Collaborative law is also well-suited to preserving relationships.

Arbitration provides a faster and more cost-effective method than litigation, if what the parties want is a final and binding resolution of their dispute. The adversarial nature of the arbitration process can be hard on relationships, but it is conducted in private (and therefore the parties' allegations are generally not presented in a public courtroom.) Although arbitration can be conducted without counsel, such cases are rare; in most situations the parties want and need legal representation to protect their rights.

How do the costs of these processes compare?

Business and employment mediations usually take one or two days; the most typical arrangement is scheduling a one-day mediation, with a phone conference or brief meeting thereafter if the case is not resolved during the first mediation session. Mediators are usually paid on a per-hour basis; at BLC, the cost of mediation ranges from $200/hour to $450/hour. In divorce mediation, there are usually several sessions of 2-3 hours spaced apart by 1-2 weeks, plus the cost of drafting a divorce agreement, which is also billed on an hourly basis.

Arbitration is also billed on an hourly basis, but the number of hours needed for arbitration can vary substantially. A simple construction, business, or employment dispute may be arbitrated in 1-3 days, whereas a highly complex business partnership breakup might require a week or more of arbitration.

In all mediation and arbitration cases, we charge a one time, $200 administration fee per party.

Collaborative law costs are similar to mediation costs in certain respects. In a divorce case, the collaborative law model will usually involve a series of 3 - 5 meetings, if there is a full array of child-related and financial issues to address. In a collaborative law business case, one or two meetings might suffice. Collaborative law attorneys bill their time on an hourly basis, both for meetings and time spent on preparation and client consultation.

What if the parties in a dispute want to save money by hiring just one lawyer to advise both sides?

Ethical rules prohibit lawyers from providing legal advice to parties on opposite sides of a dispute. When we are serving as counsel to a party that has a dispute with someone else, we have a duty to give our undivided loyalty to our client and not to the other party. When we mediate or arbitrate, we are not providing legal advice or representation to either side, but instead acting in an impartial capacity, hired by both parties, to resolve the matter.