In addition to mediation, the second main form of alternative dispute resolution (“ADR”) is arbitration.
Arbitration is a less-formal trial, although many aspects of a traditional courtroom trial are utilized. An arbitrator is a neutral third-party selected to hear and decide the dispute. Similar to mediation, an arbitrator is often a retired judge or experienced attorney who is familiar with the type of case being arbitrated.
Once an arbitrator is selected, attorneys for each side prepare an arbitration memorandum. This memorandum includes an outline of the facts (both agreed upon and in dispute) along with an analysis of the relevant caselaw. Many times the arbitration memorandum will be accompanied by evidence that each party will seek to admit at the arbitration (medical records and bills, contractual documents, photographs, etc.). Oftentimes each party will keep their arbitration memorandum confidential and will not share it with the other side.
Arbitrations in Massachusetts are governed by Massachusetts General Laws Chapter 251. This statute affords arbitrators the power to subpoena witnesses to depositions and the arbitration itself. It also affords parties the ability to examine documents and other items as part of their investigation into the claims at issue (see M.G.L. c. 251, s. 7).
On the day of the arbitration, the parties will gather in one room and proceed with their informal trial. The parties’ attorneys can make opening statements, question witnesses and present documents and other items as evidence. The arbitrator may question witnesses and will render evidentiary rulings. After each side has presented their evidence the attorneys will provide closing arguments. Armed with the arbitration memoranda and evidence, the arbitrator will then prepare a formal written decision (which can take anywhere from days to months, depending upon the arbitrator’s schedule and the complexity of the case).
After the arbitrator’s decision is rendered, the victorious party may seek to confirm their arbitration award in Massachusetts Superior Court (see M.G.L. c. 251, s. 11). Any party seeking to overturn or modify an arbitrator’s decision can also apply to the Superior Court for relief (see M.G.L. c. 251, s. 12 and 13).
Cornetta Babine LLC offers both arbitration and mediation. Both types of ADR provide a number of benefits over traditional litigation. We will explore some of those in our next post.