This is a previously published Mills & Associates Newsletter.
For additional information on this or other Nevada Insurance Law topics, please e-mail Mr. Mills at mike@mcmillslaw.com or phone (702) 240-6060.
If there is any truth to the old saying “Justice delayed is justice denied”, many people in Las Vegas are being short-changed. It can take up to five years to get a civil suit to trial in Clark County. Because of these lengthy delays, many people are turning away from the courts. Instead, they are hiring private mediators and arbitrators to help them reach agreements and avoid the hassles and delays of a lawsuit. Mediation and arbitration are two very different ways to settle disputes.
MEDIATION
Mediators are trained to help the opposing parties find their own solution to the disagreement. Mediators have been used for many years to resolve large and complicated disputes. For example, mediators are regularly involved when two countries negotiate treaties. Mediators help labor and management reach agreements to end strikes or to resolve other union contract disputes.
The trend in favor of mediation is catching on in Nevada. The Clark County Family Court will often make the parties meet with a mediator before trial. The Nevada Supreme Court requires a settlement conference with a mediator before briefs are ever submitted.
Unlike a court, a mediator does not have the power to force the parties to settle their dispute. The work of the mediator is to help the parties reach an agreement. Consequently, if mediation is to succeed, the parties must have some desire to work to find a mutually agreeable solution.
Parties to a dispute can use a mediator for any dispute. Mediation is used to resolve family disputes and business disagreements. Mediators are hired to help solve personal injury claims and employment issues. Any dispute you can think of can be addressed through mediation. In addition, mediators can be called on at any time during the dispute. Mediators intervene before and after lawsuits are filed, and even before and after a jury trial. You do not need an attorney to take a dispute to mediation.
If a mediator is hired, he will contact the parties and set an appointment to meet in a mediation session. Depending on the nature and complexity of the dispute, the mediation session may last a few hours or a few days. The mediator could hold a few short sessions over the course of several days. At the mediation session, the parties and the mediator will meet together to go over ground rules. The parties will present their positions regarding the issues to the mediator. The mediator may then choose to meet individually with the parties. During the course of the session, the parties will find those areas in which they agree and disagree. The questions on which they agree can be noted and set aside. Then the real work begins.
The mediator will then help the parties brainstorm potential solutions to the remaining problems. The mediator will ask the parties to concentrate on the risks and benefits of each option and will focus the parties on a discussion of those issues. This seems like a very common sense approach that anyone could follow. However, where issues are complex and emotions are high, a mediator keeps the discussion between the parties on track.
Although the mediator you hire may be a lawyer, it is not the function of the mediator to give legal advice. If an important legal issue arises, the parties may need to consult their own lawyers. If the parties have lawyers at the mediation session, they may consult at that time and resume the mediation. If the lawyers are not in attendance, the mediation session may need to be delayed while the parties consult with their lawyers.
If a settlement agreement is reached, the agreement will be put into written form and the parties will sign it. The parties can take the agreement to their lawyers to be formalized as necessary. If a lawsuit has been filed, the agreement will likely include a dismissal of the suit.
The parties choose the person that they would like to act as mediator. In selecting a mediator, you will want to find someone who has experience in the area in which the dispute arises and someone who has training as a mediator.
ARBITRATION
Arbitration is another way for parties to get resolution of their disputes and avoid the delays of court. However, arbitration and mediation are very different. If the parties agree, an arbitrator has the power to force the parties to resolve the dispute. An arbitrator acts as a private judge over the dispute.
Similar to mediation, the parties select their own arbitrator. The Clark County District Court keeps a roster of qualified arbitrators. Private arbitration services like the American Arbitration Association also have rosters of arbitrators available. As with mediation, you do not have to have a lawyer to participate in the arbitration process. However, lawyers often represent clients in arbitration matters.
Once an arbitrator is selected, the arbitrator will meet with the parties and/or their lawyers to discuss what formal investigation, if any is necessary before the arbitration hearing occurs. Upon completion of the formal investigation, an arbitration hearing is held. The parties each present their side of the case to the arbitrator. The arbitrator listens to all of the evidence and then reaches a decision about the dispute. That written decision is called an arbitration award.
The arbitration award can be filed with the local court and can be enforced as would any other decision of the court. Once the arbitration hearing is complete and the arbitration award is prepared and filed, the job of the arbitrator is complete. The enforcement of the award is left up to the parties.
Like mediation, arbitration has become a popular alternative to a trial in court. The District Court in Las Vegas has implemented a mandatory arbitration program for cases that have a value of less than $40,000. However, unlike private binding arbitration, the Court’s arbitration program is non-binding. That means that if one of the parties is dissatisfied with the arbitration award, that party can request a new trial before the judge or jury. If the party asking for the new trial has acted in good faith, the court will grant the request if it is timely filed.
Even the insurance companies have recognized the benefits of arbitration. Many insurance policies now include provisions that allow the insured and the carrier to resolve their disputes by arbitration.
Due to costs and delays experienced at court, alternatives means of resolving disputes are become more and more popular. Mediation and arbitration are two of those alternatives. Because mediation and arbitration are less formal, less expensive and less time consuming than a jury trial, many more disputes will be resolved by mediation and arbitration in the future.
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