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Complementary Dispute Resolution: An Alternative to the Courtroom

November 27, 2012

In today’s economy, the expenses associated with resolving legal differences has become burdensome for families, and has led to a more streamlined process in an alternative method for settling disputes called Complementary Dispute Resolution (CDR). The purpose of CDR is to quickly and efficiently resolve differences between two parties. CDR does not by any means supersede litigation.

In the Rules Governing the Courts of the State of New Jersey, Rule 1:40-1, et al., defines and sets forth the procedures and rules for CDR while administering and policing all of the various programs under a very large umbrella. The two mainstays of CDR are arbitration and mediation.

During arbitration each party presents their case to a neutral third party who then renders a specific award or recommendation. A few examples of this type of CDR include court programs such as Early Settlement Panels in family law, mandatory non-binding arbitration in civil personal injury cases and non-binding arbitration in commercial cases. Prevalent in personal injury automobile cases the party bringing the dispute, the plaintiff, chooses an arbitrator and the party resisting the suit, the defendant, chooses a second arbitrator. The two arbitrators then choose a third neutral arbitrator who serves as a tie-breaker only if the arbitrators are unable to reach an ultimate conclusion. An arbitrator is usually a retired judge, a court-appointed lawyer or a lawyer trained in arbitration. The arbitrator’s job is to reach a decision for both parties. In essence, an arbitrator picks winners and losers on each of the various issues in dispute; liability, damages, etc.

Mediation is a distinctly separate concept from arbitration. The hallmark of mediation is compromise. It is not the mediator’s job to pick a winner or a loser, but to facilitate the choices being made by the parties involved in the dispute. For the issue to be resolved, it is the mediator’s duty to assist both parties in assessing the strengths and weaknesses of each party’s case. It is helpful if a mediator is trained as a lawyer, but not necessary. The mediator aids the parties to realize there is value to everything, including expediency and immediate resolution. As such, the mediator can readily advise that justice delayed is often justice denied.

In some instances, mediation and arbitration can be combined as a hybrid process. Both parties may first seek a mediator to assist them to focus on the issues and to help them reach a clearer understanding of what is most important. However, the dispute may remain unresolved leading the parties towards arbitration with agreed stipulations. The arbitrator makes the ultimate decision.

Whether it is mediation, arbitration, or some combination thereof, the rules of common sense and compromise are just as important as the Rules of Evidence and Procedure. During either process reports are usually substituted for expert testimony and position papers replace hours of fact-based testimony and the arguments that follow. There is no need for a jury, judge, clerks or court administrators shortening the process to hours or days rather than months and years. With the use of CDR, disputes among parties are often settled quickly and at far less expense to both parties. Since CDR is borne out of the very litigation it seeks to compliment, most lawyers are familiar with the concepts and can readily direct the client to a resolution of their claims in these areas.

Ronald E. Prusek, Esq. is a R. 1:40 Qualified Mediator and Arbitrator.

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