Cashion Mediation & Arbitration, LLC provides business mediator and arbitrator services in English and
Spanish to a domestic and international clientele. Mediation and arbitration are types of alternative
dispute resolution, which includes several methods for the resolution of disputes without having to go to
court. As a rule, mediation is successful approximately 85% of the time, while arbitration, because it
results in a binding decision, resolves disputes virtually 100% of the time.
How do you decide which method is right for you?
Mediation:
Mediation, whether court-ordered or entered into voluntarily between the parties, provides those involved
with the greatest control over the process than in any other legal proceeding. Mediation is a settlement
discussion facilitated by a neutral mediator. It is conducted entirely in a private and confidential setting.
In this situation, the mediator, acting as an independent neutral, does not have decision-making
authority. Reaching an agreement is entirely up to the parties. The mediator's role is to engage the
parties in an objective discussion of their dispute, with the goal of having them reach a resolution of their
differences. If a party is unhappy with the progress of these discussions, he or she can walk away at any
time and the matter is declared to be at an impasse. However, the best result is, obviously, a complete
agreement between the parties that resolves their differences and ends their dispute. The agreement is
then put into writing and signed by the parties and the mediator and thus becomes a legally enforceable
contract.
The proceeding typically begins with Mr. Cashion asking each party to make an objective statement of the
dispute. He requests the other party to listen closely to determine whether both of them understand the
dispute in the same way. Usually, the two parties are then separated and Mr. Cashion begins a series of
meetings first with one side and then the other, with the intent of reaching a negotiated settlement.
Whatever is said in each of these separate meetings is confidential, except for that part which he is
granted permission to reveal to the other side as part of the ongoing negotiation. Thus a party is free to
fully express himself or herself and the nature of these discussions tend to be very frank.
Should the mediation not result in an agreement, anything that was said during the process cannot be
used in later litigation, should that be the next step. The only exceptions are those designed to protect
certain persons. If the dispute started as a lawsuit and was then referred to mediation, the mediator’s
only obligation is to advise the court when (A) a signed agreement has been reached, or (B) the
discussion has ended in an impasse. When the mediation is successful, the signed agreement is kept
by each of the parties and is not filed with the court, unless it becomes necessary for one party to seek
judicial enforcement of the agreement because the other party is not complying.
If a mediated agreement is not reached, the parties then have a choice of whether to proceed to
arbitration or forego that and go directly to litigation.
Arbitration:
This proceeding results in a decision that is binding on the parties. It is generally as enforceable as a
decision rendered in court, often more so because the grounds for appeal are more restricted than in
litigation. So long as the arbitration meets certain legal requirements, if the losing party refuses to pay
what it has been found to owe the winning party, or do what it has been ordered to do, the arbitral
decision is enforceable against the losing party in an abbreviated proceeding in a court of law.
The original contracts between the parties often contain a clause calling for the use of arbitration when a
dispute related to the contract arises. If there is no such clause, the parties can nevertheless agree to
arbitrate their differences. The scope of what can be arbitrated is quite broad.
The parties may agree on one person to arbitrate their case or they may pick three. In the latter situation,
each party appoints an arbitrator and the two arbitrators then choose a third arbitrator to be the umpire
and in charge of conducting the proceedings. The umpire also serves as the tie-breaking vote should
that be needed at the end of the arbitration.
The decision can be given orally or in writing, as the parties may prefer.
What is said in the arbitration is heard by all the participants. It is the practice to have a court reporter
record the proceeding. However, the proceeding as well as the arbitral decision is confidential among
the participants.. If there is pending litigation involving the arbitration, the court can require that it be
informed of the decision and the reasoning that led to it.
Our legal system strongly supports arbitration. An appeal of the arbitral award to a court of law is unlikely
to succeed. Except for some very narrow exceptions, arbitration decisions are always final and binding.
Both of these methods, mediation and arbitration, are almost always less expensive, more efficient and
provide a quicker resolution than litigation.
Marvin J. Cashion, Principal
Attorney-at-Law
Cashion Mediation & Arbitation, LLC
214 Serenity Hill Circle
Chapel Hill, NC 27516
Tel. (919) 240-4221
Cell (786) 514-5224
mcashion@cashionADR.com
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Cashion Mediation & Arbitration, LLC
| Serving your business mediation and arbitration needs in English and Spanish |