Murray & Damschen, P.C.

Meeting your Mediation and Arbitration needs.

It has been our experience that there is often confusion about Mediation and Arbitration processes. In fact, many people use the terms interchangeably when they refer to different processes.

Many of our clients will be involved in either one or both of these processes. Most courts today will require that the parties engage in Mediation or another type of alternative dispute resolution before their case can go to trial. In addition, many contracts now have provisions, which are usually enforced, requiring that the parties engage in binding Arbitration of their disputes rather than filing claims in court. Therefore, it is important for clients to understand the general nature of each process.

What is Mediation? Mediation is a process where the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences. Not only does Murray & Damschen, P.C., represent clients in the mediation process, but Mr. Damschen also accepts work as a neutral mediator working with parties, who may or may not be represented by counsel, to meet and attempt to resolve their disputes. The following explanation of the mediation process is provided to assist you in deciding if mediation is right for you. The procedures discussed are those typically followed in the mediation of a dispute, however, every case is different and flexibility is the key to the mediation process.

Mediation can best be described as an assisted negotiation. The mediator is a neutral, unbiased party hired jointly by the parties to act as a facilitator who attempts to assist the parties in reaching an agreement that is acceptable to each of them. No agreement or ruling is imposed upon the parties by the mediator; instead, the parties try to reach a mutually acceptable agreement through the negotiation process. Judges and arbitrators make decisions for the parties and issue orders, mediators do not.

There are no formal procedures in mediation as there are in court or arbitration proceedings. Before mediation commences, the parties and the mediator will often agree upon the procedures that will be followed. The party's can arrange the mediation in a way that makes sense to them and the mediator. Mediation provides for open discussion of the issues and allows the free interchange of ideas. Thus, it becomes easier to determine the interests of the parties and to fashion a solution that satisfies those interests.

The mediator can be an invaluable neutral resource to all participants in the mediation process. The mediation process is designed to keep the parties focused and moving forward to a mutually agreeable resolution of their dispute.

In many cases, the mediator will conduct telephone conferences with the parties or be provided with position statements by the parties prior to the mediation. This provides the mediator with an understanding of the nature of the dispute and those issues which impact the parties' positions.

The mediation can be conducted in a joint session with the mediator and the parties all in the same room discussing the dispute and potential resolutions. Other times, it is best to keep the parties in different rooms and have the mediator meet with each separately, communicating offers or proposals from each party to the other. The mediator often shuttles back and forth between the parties, carrying various settlement proposals and messages. The mediator keeps information from the private sessions confidential unless he is authorized to disclose it.

The mediator will often act as "devil's advocate" in these sessions to explore how realistic the positions of the participants are and what is possible considering the no agreement alternative. The mediator often assists parties to prioritize interests and options for settlement and to assess the relative strengths and weaknesses of positions.

If a settlement is achieved, the parties will prepare a written memorandum setting forth the key terms of the agreement for each party to sign. In some cases, if no agreement is able to be reached at the mediation, telephone conferences continue following the mediation session in an effort to resolve the dispute.

Mediation leaves the decision strictly with the parties. The mediator does not decide what is "fair" or "right," does not place blame or render opinions on the merits or chances of success if the case were litigated. Instead, the mediator acts as a communication tool between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while guiding the process to reduce confrontation.

What is Arbitration? Arbitration is the most traditional form of private dispute resolution. Unlike mediation, Arbitration is a binding procedure where the decision making power has been given to a neutral third party, the Arbitrator, who renders a decision at the end of an arbitration hearing, and that decision is final and binding, subject only to a limited court review.

Most arbitration is required by a contract entered into by the parties, in which they agree that if a dispute should arise, it will not get into the court system. By agreeing to arbitration, the parties, among other things, are waiving their right to a trial by a jury of their peers. Unless otherwise agreed, the decision is legally binding and non-appealable, except in extremely limited circumstances, such as in the case of fraud or collusion on the part of the arbitrator.

The arbitrator is an impartial person chosen by the parties. The arbitrator can read briefs, hear testimony, examine evidence and will then render an opinion on liability and damages in the form of an "award of the arbitrator" after the hearing. Once confirmed by a court of appropriate jurisdiction, the award can be subsequently entered as a judgment.

There are many different forms that Arbitration can take, depending on the parties desires. One is called "High-Low Arbitration" or "Bracketed Arbitration" where the parties agree in advance to the parameters within which the arbitrator may render an award. If the award is lower than the pre-set "low," the defendant will pay the agreed-upon low figure; if the award is higher than the pre-set "high," the plaintiff will accept the agreed-upon high; if the award is in between, the parties agree to be bound by the arbitrator's figure. The high and low figures may or may not be revealed to the arbitrator. Another form is called "Baseball Arbitration" wherein each of the parties chooses one and only one number, and the arbitrator may select only one of the figures as the award. In a baseball arbitration, there are only two possible outcomes. A similar form of arbitration is known as "Night Baseball Arbitration" where the parties exchange their own determination of that value of the case, but the figures are not revealed to the arbitrator. The arbitrator will assign a value to the case and the parties agree to accept the high or low figure closest to the arbitrator's value.

The parties may also choose "Non-Binding" Arbitration which is a procedure conducted much like a binding arbitration, except that the arbitrator issues the award after the hearing that is not binding on the parties and they do not give up their right to a jury trial. In that case, the arbitrator's award is merely an advisory opinion.

Contact Murray & Damschen, P.C., if you need representation in a Mediaiton or Arbitration, or if you are looking for a third-party mediator or arbitrator.

Murray & Damschen, P.C.
1536 Cole Blvd., Suite 335
Lakewood, CO 80401
Phone: (303) 274-7752
Facsimile: (303) 274-7942

The Law Offices of Murray & Damschen, a Professional Corporation represents clients throughout the state of Colorado, serving the people of Adams County, Denver County, Douglas County, Jefferson County, El Paso County, Weld County, Grand County, Larimer County, Summit County, and Arapahoe County. We work in Denver metro area communities such as Golden, Evergreen, Erie, Frederick, Dacono, Boulder, Aurora, Superior, Brighton, Arvada, Thornton, Lonetree, and Centennial.