PROBLEM SOLVING

I am a lawyer in search of a solution for my clients---that solution can take many paths.

In our conflict filled world, we must recognize that we have multiple ways to resolve conflict. Twenty years ago, I came to the realization that the label "trial lawyer" was no longer an accurate description. instead, we are more accurately described as "dispute resolution specialists". [IT IS NOT AS “GLAMOROUS SOUNDING”, BUT IT IS FAR MORE DESCRIPTIVE OF WHAT WE ACTUALLY DO”.]

Accordingly, we must arm ourselves with a tool box filled with dispute resolution mechanisms such as mediation, arbitration, and traditional civil trials. And, most importantly, in order to render wise counsel and representation to our clients, we must know how to select the most appropriate dispute mechanism. And, possess the skill to successfully represent the client in that process.

I have described below the three most utilized dispute resolution processes:

LITIGATION

This is the traditional method of filing a lawsuit. It is administered by a state or federal judge and the ultimate hearing occurs at the “Courthouse” or “Courts Building”. It is a public proceeding and the Judge is in control of the process. The cost of litigation is in the attorney’s fees and costs of preparation.

ARBITRATION

This is private process that utilizes a private judge called an Arbitrator or Arbitration Panel (consisting of multiple Arbitrators---usually three (3)). Arbitration arises from the parties contract or an agreement to submit the dispute to arbitration or in rare instances from a statute that provides for arbitration of disputes. It is an old process that flourished in the trade unions in Europe. It has been the accepted method of resolving construction disputes for decades. Recently, it has become more commonly used in commercial disputes. You also find arbitration clauses in cellular telephone and credit card contracts.

The advantages of Arbitration are its speed, privacy and in most instances cheaper. Although the parties pay the arbitrator, the expense saved by avoiding discovery usually offsets that expense.

MEDIATION

It is a private, consensual process whereby the parties hire a Mediator to assist them to reach an agreed resolution of their dispute. It is sometimes characterized as an “assisted negotiation”. It is a forward looking process that does not address fault or blame, but rather focuses upon finding a resolution that allows the parties to put the dispute behind them and move forward.

Mediation has gained wide acceptance in the last twenty (2) years. It is used in a variety of disputes ranging from employment law disputes.to neighbor disputes Commercial disputes lend themselves to this process. Indeed, mediation has become the preferred method of resolving disputes in the context of divorce and is required in Tennessee if the parties cannot reach agreement upon Parenting issues.

The Mediator is paid by the parties and their counsel normally attend to assist their clients.

LITIGATION

ARBITRATION

MEDIATION

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