Comparison of Dispute Resolution Processes Attributes

By Stephen M. Gaddis

ITEM COMPARED ADJUDICATION MEDIATION

Focus of Process / Fit people and their problems into a broad, consistent matrix such that all are treated identically / Accept the feelings, needs, experiences, and context of the parties as unique in designing a solution for all
Criteria Applied in Decision-Making / Apply the law to the facts found / Achieving an outcome that all parties voluntarily accept
Credo / Justice is BLIND – Equal Protection can translate into a “One Size Fits All” remedy / Outcome should and can be tailored to the individuals and their circumstances
Who Is in Control, Sets the Rules and Procedures? / Congress, the State, Supreme and Local Courts, the Judge(s) / Mediator, counsel, parties
Privacy Considerations / Open public records / Private and confidential
Time and Convenience / Timelines are imposed by Case Schedule, State & Local rules / Preparation and meeting times are set by counsel and parties’ mutual agreement
Location / Fixed sites in population centers; no waiver allowed / Where ever the parties choose
Formality / Structured Rules of Evidence limit admissibility of facts that are considered / Whatever is deemed important by parties and their counsel is considered
Contact with Decision Maker / No ex parte contact, no direct communication / Parties decide, but all are free to speak with Mediator
Role in selection of “the neutral” person / No control of selection of commissioners; none for judges other than one Affidavit of Prejudice each / Complete -- selection upon recommendation of counsel and based upon experience with and of the Mediator
Finality of Outcome / Subject to reconsideration, review, revision and appeal / CR2a is binding, agreed orders not subject to appeal
Role of Lawyer / Attorney, researcher of law and facts, memo writer, and advocate / Counselor, fact finder, persuader, negotiator, and advocate
Role of Neutral Person / Proclaim the general law, apply it specifically to the parties and their issues / Educate, evaluate, explore how various options may apply to meet the needs of all
Qualifications of Neutral / No knowledge of parties or apparent conflicts of interest / Knowledge, conflicts to be disclosed; may be waived
Stake in Outcome / None – on to next case / Problems come back; individual reputation and future referrals depend upon satisfactory outcome
Limitations to Decision / Strictly bound by precedent / One can “Think Outside the Box” in arriving at solutions
Expense/Utility of Time / GREAT: Requires excess discovery for CYA, trial prep time, retention of experts, delay in getting courtroom, heavily structured times for hearing / MINIMIZED: Parties may stipulate to avoid excess discovery; need for experts is diminished; no delay in getting courtroom; session time is as all agree
Overall Time to Outcome / Determined by Rules, court, procedures and appeals / As determined by parties
Common Feelings at Conclusion of Process / Ripped off, treated unfairly, “put through the ringer” / Relief, closure, ready to plan for the future

c. 2006 Stephen M. Gaddis. No reproduction allowed without consent of the author.

Comparison of Attributes, 4/21/06 p.1c.2006 Stephen M. Gaddis