Disputes are often resolved through Alternative Dispute Resolution, referred to as ADR. This includes settlement negotiations or formal proceedings involving arbitration or mediation.
The Law Offices of Kevin C. Maxwell and Associates regularly advises clients on all forms of ADR and counsels clients in the proper creation, use, form, interpretation, and enforcement of arbitration clauses.
Arbitration is a proceeding often initiated as a result of a contractual agreement wherein one or more individuals, referred to as Arbitrators, resolve claims by considering evidence and rendering an Arbitration Award following a Final Hearing.
Arbitrations are often less formal than judicial proceedings and may be conducted pursuant to rules established by organizations such as the American Arbitration Association (“AAA”) or the National Association of Securities Dealers (“NASD”).
Arbitrations usually involve some discovery of each party’s claims and proof but are generally narrower than is allowed in judicial proceedings. Arbitrators resolve interim disputes leading up to a Final Hearing. The Arbitration Agreement or rules may provide Arbitrators with broad discretion as to the procedures, proof allowed and relief awarded. An Arbitration Award is often final and un-appealable because the court’s judicial review of Arbitration Awards is limited.
Arbitration clauses are common in all types of agreements in nearly every industry. Florida’s state and federal courts have endorsed Arbitration through the enactment of the Federal Arbitration Act (“FAA”) and Florida Arbitration Code – Chapter 682, Florida Statutes.
These laws require courts to stay litigation and to compel arbitration so long as the parties’ dispute is within the scope of a contractual arbitration clause.
Arbitration is often considered to have advantages over litigation because of perceived savings, the private nature of the proceedings, expediency and the opportunity to participate in the selection of the Arbitrator.
Another form of ADR is mediation involving a settlement conference before a neutral Mediator, who endeavors to assist the parties in reaching an amicable resolution. Florida’s federal and state courts often require parties to participate in mediation before trial. Mediation may also be required by the parties’ contracts.
If a Mediation agreement is achieved, the parties memorialize the terms in a written agreement for enforcement by the court. If no agreement is reached, the mediation proceedings are confidential, any admissions made during mediation are inadmissable as evidence in the case, and the litigation (or arbitration) continues.
- Settlement Negotiations
The opportunity to amicably resolve disputes is evaluated by the firm throughout every representation. By its nature, settlement usually requires all parties’ to compromise. An amicable resolution has advantages including assurance of a specific outcome rather than the uncertainty of a judicial ruling or a result achieved through ADR.