VISCOMI & GERSH, PLLP

ATTORNEYS AT LAW

Representing clients in serious accident and injury cases,

civil litigation and real estate matters.

MEDIATION AND ARBITRATION

As a mediator, settlement master and arbitrator, MICHAEL A. VISCOMI, handles the following dispute resolution procedures for the firm:

Civil Mediations
Settlement Conferences
Federal Court Mediations
Appellate Court Mediations
Civil Arbitrations - Binding and Nonbinding

What is Mediation?

Mediation is an informal non-adversarial process whereby a neutral third party serves as a facilitator between the parties. The mediator helps the parties identify and evaluate the issues and formulate a mutually acceptable resolution of those issues. Unlike arbitration where the arbitrator, or panel of arbitrators, actually makes a decision, in mediation the ultimate decision making authority rests with the parties.

Why Mediate?

When compared to litigation, the benefits of mediation are many and varied. These benefits include the following: Mediation can resolve a dispute between parties expeditiously, often during a mediation session lasting only 2-4 hours, and can usually be scheduled within a few days or weeks. The costs of mediation are relatively inexpensive, often less expensive than taking one deposition. Mediation allows the parties to resolve their dispute amicably and with less stress than in litigation. This is particularly important in cases involving families, businesses and similar cases where the parties need to maintain an ongoing relationship.

Unlike litigation, when many things often become a matter of public record, disputes resolved through mediation can remain private. Specifically, all matters discussed at mediation can remain privileged by agreement, and the terms of the settlement can often remain private if the parties desire.

At mediation, the mediator often helps the parties formulate creative solutions to the dispute, thereby providing remedies not otherwise available through litigation. For example, instead of being limited to money judgments, injunctions and similar remedies provided by law in litigation, the parties can resolve their dispute - through mediation - by trading or dividing property, providing services, providing payment over time, etc.

Since the ultimate decision making authority rests with the parties, they control the outcome of their own case. On the other hand, in litigation, the parties must accept a decision made by an unknown judge or jury.

What Happens at Mediation?

During the initial joint session, the mediator will first summarize his or her background and explain the procedures to be followed during the mediation. It will also be explained that everything that transpires at the mediation will be confidential. Each of the parties will then be provided an opportunity to make an opening statement wherein it is expected that they will in good faith summarize the facts and issues which are important to the resolution of the case.

After the initial joint session, the mediator may separate the parties and have individual caucuses (private meetings) with each side. During these caucuses, the mediator will ask questions and provide insight regarding the strengths and weaknesses of a party's position and assist in the risk evaluation process. The mediator will then help the parties negotiate a favorable resolution by repeating these individual caucuses and occasionally reconvening the parties for joint sessions.

At the conclusion of this process, which usually takes 2-4 hours, the mediator will declare a complete or partial settlement or declare an impasse if he or she is unable to assist the parties in reaching a favorable resolution. In the event of a settlement, it is recommended that the material terms of the settlement be put in writing and be signed by the parties and legal counsel, if any.

What is Arbitration?

With arbitration, unlike mediation, an arbitrator, or panel of three arbitrators, actually makes a decision in your case. The decision of the arbitrator, or the majority decision of the arbitrators, can be binding or non-binding depending on what the parties' contract provides for or the parties otherwise agree to prior to the arbitration hearing.

Why Arbitrate?

There are some benefits of arbitration over litigation, and they include the following: An arbitration hearing can often times be scheduled within a few weeks and since the hearing itself usually only takes a half day or full day, your dispute can be decided much faster than it would through the court system. Since the whole arbitration process is expedited and abbreviated, it is much less costly than litigation. Unlike litigation, when many matters become a matter of public record, disputes decided by arbitration can remain private and confidential if agreed to the parties. Since the parties usually agree on who the arbitrator(s) will be, they at least have some control over who is going to be deciding their case, instead of an unknown judge or jury.

What Happens at Arbitration?

Prior to the actual arbitration hearing, the parties will usually be permitted to conduct some "discovery", if necessary. This may include sending Interrogatories (written questions) or Requests to Produce Documents to the other party or the taking of some depositions. The arbitration is conducted like a mini-trial, except the rules of evidence are liberally construed. Accordingly, each party will have an opportunity to make a brief opening statement, following which the Plaintiff will present his witnesses and exhibits and then the Defendant will do likewise. The parties will then be permitted to make a closing argument summarizing their respective positions and the relief being sought. Within a relatively short time following the arbitration hearing, the arbitrator(s) will issue his written arbitration award. As stated above, this award may be binding or non-binding. In some circumstances, a party may have a very limited right to appeal the decision of the arbitrator(s) through the courts.

Call or write today for more information
about our mediation and arbitration services.

Viscomi & Gersh, PLLP
Attorneys at Law
121 Wisconsin Avenue
Whitefish, Montana 59937
Phone: (406) 862-7800 Fax: (406) 862-7820

E-Mail: Mail@BigSkyAttorneys.com