A Non-Denominational Parachurch Ministry
GIVING YOU CONTROL OVER ALTERNATIVE DISPUTE RESOLUTION
Sometimes, the FAQ page is the best place to start to learn about something new. We've tried to make this true on our site as well. Here are some of our more frequently asked questions:
What is the difference between Mediation and Arbitration?
Is Mediation all confidential?
Is a mediated resolution legally binding?
Do we have to do this at any particular location?
Were already in litigation: Is it too late to use ControlAltDispute?
What kind of disputes would you handle?
What is your Meditations page?
What is the relationship between ControlAltDispute and the local church?
What is "Christian Conciliation"?
What's with your name "ControlAltDispute"?
What is the difference between "Mediation" and "Arbitration"?
While there are various kinds of mediations and arbitrations, this chart highlights the "general" differences and similarities. We must say "general" because of the wide discretion given to the parties themselves to set up the parameters of any given mediation or arbitration. For this reason, it is critical for each party to have his own legal counsel explain the particular rights and obligations for his particular situation. (For this reason also, you should not rely on this chart as any form of legal advice from us!)
Mediation |
Arbitration |
|
Mediator/Arbitrator’s Role |
The Mediator acts as a neutral party to facilitate a resolution. He may assist the parties by exploring options and identifying issues and alternatives, but he does not give legal advice or conclusions or opinions. |
The Arbitrator(s) acts in a similar capacity to a judge by hearing testimony, considering arguments from both sides, and ultimately rendering a decision. |
How are documents and witnesses handled? |
Parties typically discuss documents and witnesses, but the actual documents and witnesses do not play a direct role. Documents might be shown to the Mediator to help explain the controversy, but witnesses are never (?) called to testify. |
Documents and witnesses are generally utilized and treated in almost the same way as found in the civil trial courts. Some arbitrations have the same strict standards for evidence and admissibility as found in a civil court. Some arbitrations (e.g., court-ordered non-binding), however, do not use the standard rules of evidence at all. |
Who Resolves the Controversy? |
The Mediator facilitates the resolution, but it is the parties themselves who actually resolve the controversy by a written agreement. |
The Arbitrator(s). |
Is it confidential? |
Mediations typically are confidential and are usually covered by specific laws and rules regarding confidentiality. (The Mediator will explain the exact parameters of confidentiality in each particular circumstance.) |
Arbitrations are not typically confidential. |
Do you have to have an attorney? |
Technically, no, but it is a very good idea since the Mediator cannot give anyone legal advice. |
Again, technically no, but few non-attorneys could navigate the rules and procedures of most arbitrations. Also, as in Mediations, the arbitrator(s) cannot advocate for or give legal advice to any party. |
Is there always a resolution? |
No. If the parties do not reach an agreement, the mediation is said to have resulted in an “impasse.” |
Yes. The Arbitrator(s) render a final written decision at the conclusion of the proceedings. |
Is the resolution binding? |
Yes. As the parties enter into a settlement agreement, that agreement is as binding and enforceable as any other written contract. |
Yes. An arbitration award is typically enforceable as a judgment (although there are “non-binding” arbitrations, but they don’t fit on this simplistic chart!). |
Is there a possibility for an appeal? |
While not technically an appeal, as with any written contract, there is always the possibility of someone claiming in a subsequent lawsuit that the agreement should not be enforced for some reason (such as being procured by fraud or duress). |
There is a very limited right to have a civil court review an arbitration award, but it is not nearly as extensive as the appellate review of a civil trial court’s actions. |
How much does it cost? |
Most Mediations are going to be completed in a day or less so and the cost of the Mediator is generally the only expense and that is generally split evenly between the parties.
For the exact details, click here to go straight to our FEES page. |
Many arbitrations can be completed in a day, but because they generally entail documents and witnesses, they can also run for several days. Arbitrations are sometimes before a panel of arbitrators instead of a single arbitrator (obviously increasing that part of the cost.). Arbitrations require a great deal more preparation (primarily because of the witness and document components). Arbitration fees/costs are generally split evenly between the parties, but it is not unusual for parties to agree (beforehand, obviously) that the prevailing party has some or all of his arbitration and/or attorneys’ fees reimbursed by the non-prevailing party. |
Obviously the biggest factor in determining the cost of a mediation or an arbitration is the time necessary to reach the desired result (see the table immediately above regarding time differences). For the exact details on fees and costs, click here to go straight to our fees page.
Is Mediation all confidential?
As a general rule, what is said in mediation, stays in mediation. Confidentiality is a very important part of what makes a mediation work, so the legislature and the courts are very concerned to keep it confidential. Mediators generally encourage open and frank discussions and disclosures and the parties generally do not have to worry about hearing later in court: "But he admitted in mediation that he . . . ."
Having said that, there are some very limited exceptions where confidentiality is not preserved such as disclosure of plans to commit violent crimes, etc.
If you have any specific concerns about confidentiality, be sure to raise the topic with your counsel ahead of time.
Is a mediated resolution legally "binding"?
If the parties reach a resolution, that resolution is reduced to a writing signed by all the parties at the close of the mediation. This writing is a contract and is as binding and enforceable as any other written agreement. There is no "appeal" per se, though conceivably a party could seek to declare the contract unenforceable if there are severe enough circumstances (e.g., physical duress). Generally, however, courts look very skeptically at anyone trying to get out of a mediated settlement for a number of important reasons.
Do we have to do this at any particular location?
A mediation or arbitration can technically occur anywhere, but a "neutral" ground is highly recommended.
For mediations, it is important to have a conference room sufficient to accommodate all the parties at one time for the initial part of the mediation, plus separate rooms for each party where the parties typically spend most of their time. For mediations, the large conference room is the only real "need."
ControlAltDispute has the necessary conference and meeting rooms available, plus plenty of free, covered parking, and a full delicatessen downstairs. Sometimes it makes sense to conduct the mediation or arbitration at the church or business, all depending upon the parties perceived needs and the availability of necessary space.
In addition to the mediator, the parties themselves need to be there. (In some limited instances, a representative may appear if that representative has the full authority to settle and bind the party, but this must always be cleared ahead of time with the mediator and all parties.) Attorneys are welcome and encouraged.
In some instances, non-parties may be present for some or all of the mediation, though this is generally discouraged. If a party has a particular felt need for a non-party to attend, this should be brought to the mediator's attention as soon as possible.
We're already in litigation: Is it too late to use ControlAltDispute?
Not at all. In fact, if you are in litigation in the tri-county area, you are almost certainly going to be ordered to mediation or non-binding arbitration by your civil judge at some point before trial and the parties always have the choice of choosing ControlAltDispute to conduct the mediation or arbitration. (Remember, ControlAltDispute has lawyer/mediators/arbitrators that are certified by the Florida Supreme Court as mediators, or qualified by the Supreme Court as arbitrators, for various kinds of civil litigation.)
What kind of disputes would you handle?
Just about any dispute that would ordinarily end up in a civil court. That would include disputes arising from contracts, negligence, divorces, corporate dissolutions, employment, contested probate, and intra-church disputes and splits. Some disputes, however, must be handled by the courts, regardless of any agreement of the parties. This would include some issues involving minors (like child custody or child support) or criminal matters.
What is your "Meditations" page?
This is the page we designed for our clients to use in their personal meditation and prayer times before attending a scheduled mediation or arbitration. We are strong believers that "Meditation Precedes Mediation." This page is a collection of Bible verses, without commentary, specifically dealing with disputes and their resolution. Remember: the Word of God is sharper than any two-edged sword, it never comes back empty, and it is profitable for teaching, reproof, correction, and training in righteousness. [Heb. 4:12; Is. 55:11; 2 Tim. 3:16 ]
Is this only for "Christians"?
No. We believe that the principles taught in the Old and New Testaments regarding conflict resolution are applicable to people of all faiths.
Can you help out a Christian businessman who would like to "build into" his contracts some form of Christian alternative dispute resolution?
Absolutely. We have drafted some language for use in many types of contracts and situations. Please go to our FORMS page.
If I'm having a dispute with my brother in the church, can we both come to you without lawyers and have you give legal advice to both of us?
Legally and ethically speaking, no party is required to retain legal counsel for any proceeding before ControlAltDispute. Having said that, however, having legal counsel can be invaluable in assisting with "creative" settlement offers during a mediation. Part of the reason for this is that mediators and arbitrators are not permitted to give legal advice while they are acting as "mediators" or "arbitrators."
If the mediation doesn't resolve the dispute and I end up in court, can I hire the ControlAltDispute mediator to represent me?
While it might be possible to conceive of a situation where this could happen, the answer is almost always going to be "no." A ControlAltDispute mediator is very likely to have learned "secrets" or "strategies" during the mediation from one or both parties which is going to present the mediator with an ethical prohibition against representation of one against the other.
What is the relationship between ControlAltDispute and the local church?
One of ControlAltDispute's primary objectives is to work along side of local churches to assist them in fulfilling their mandate to resolve intra-church disputes. In the most usual situation, a person or persons has already gone to the leadership of his church who is already aware of the conflict. For any number of reasons, the local church might not able to resolve the conflict and so they "partner" with ControlAltDispute to provide the necessary expertise. The local church, who knows best the needs and abilities of the particular parties might agree to pay for some or all of the fees and costs. (Pastors, please click to read the Open Letter to Pastors and Churches.)
What is "Christian Conciliation"?
Christian Conciliation can be broadly defined to mean dispute resolution from a Christian perspective. In this respect ControlAltDispute would be a form of Christian Conciliation service. More than twenty years ago, the Christian Legal Society had begun to form "Christian Conciliation" Service chapters in the United States which eventually led to the formation of Peacemaker Ministries with a division called the "Institute for Christian Conciliation." The ICC uses the phrase Christian Conciliation in their ministry to mean a specific process generally involving three steps: individual counseling, mediation, and then arbitration. Using the ICC's definition, ControlAltDispute would only formally be involved in the second and third steps. ControlAltDispute assumes that the first step has already taken place at the church level. (For an in depth discussion and history of Christian Conciliation, see the article Christian Conciliation: An Alternative to Ordinary ADR, by Glenn G. Waddell and Judith M. Keegan, originally published at 29 CUMB. L. REV. 583 (1999)). ControlAltDispute uses a number of similar methods and procedures as Peacemaker Ministries, but is not formally associated with that entity.
What's with your name "ControlAltDispute"?
For many years, when you ran into serious trouble or conflict in the Personal Computing environment, you used the keyboard combination "control + alt + delete" to get you out of it. Even today when your system just isn’t working, you can hit that same combination and it will take you to a place where you can try to resolve the conflicts. One day the thought came to me that it would sure be great if there was a "keyboard equivalent"
in life to help get us out of conflict or trouble; some form of alternative dispute resolution. My thinking continued that if there were such an alternative that would give the parties themselves control over the outcome, what would we call it . . . ?