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#144 Should you settle your problem out of court

mp3 #144 Should You Try to Settle Out of Court? (mp3 file)

This Smartlaw message will discuss the following questions:

1. How can you settle your problem out of court?

2. Why would you want to settle out of court?

3. How does alternative dispute resolution work?

4. What are some other ways to settle out of court?

5. What kinds of disputes can be settled by alternative dispute resolution?

6. Can you use alternative dispute resolution even after a lawsuit is filed?

7. Who are the mediators and arbitrators?

8. How do the charges compare with lawsuit costs?

9. Will you need an attorney?

10. How well does alternative dispute resolution work?

11. Is alternative dispute resolution confidential?

12. Can a court enforce the agreement?

13. Are there any disadvantages?

14. What if you are not good at speaking up?

15. How can you be sure that the other person will want to use dispute resolution?

16. How can you find an alternative dispute resolution program?

Now the answers;

1. How can you settle your problem out of court?

Through "Alternative Dispute Resolution." Usually, this means that a "Neutral Third Party", someone who has nothing to do with the dispute either decides what is right or helps both sides find a way to settle their differences.

2. Why would you want to settle out of court?

For one thing, courts today are often so overcrowded that you may be able to settle your problem much sooner outside a courtroom. And, you can avoid the high cost of a lawsuit. Also, Alternative Dispute Resolution lets you choose a way of resolving your dispute that suits the kind of problem you have.

3. How does Alternative Dispute Resolution work?

There are several ways to solve your problem out of court. The most common methods of Alternative Dispute Resolution are conciliation, mediation and arbitration.

Conciliation is voluntary, private and the most informal method. Sometimes used as a starting point for dispute resolution, the process involves a neutral third party who talks with you and the other person and separate times to explore possible solutions.

Mediation also is a voluntary, private and informal way to discuss problems and reach agreements. A "mediator", a trained neutral party, sits down with you and the other person to work out an agreement that you both can accept. Mediators do not give their opinions. Instead, they help people exchange information and ideas and talk about ways to settle their differences.

Arbitration, on the other hand, is more formal. You and the other person give your evidence, either spoken or written, to a trained neutral party called an "arbitrator." Sometimes, you can ask witnesses to give evidence, too. The arbitrator considers all the evidence and makes a decision. You and the other person decide beforehand whether the arbitrator’s decision will be "binding" or final, or if, instead, you want the opportunity to go to court if you don’t like the decision.

So with conciliation and mediation, you and the other person make your own agreements. With arbitration, a neutral third party decides the outcome.

Another way to try solving your problem is, Med-Arb, a combination of mediation and arbitration. It starts with mediation, then, if it fails, it moves on to arbitration.

4. What are some other ways to settle out of court?

A number of other programs are connected to the court system. In fact, some courts will give you an early trial date. If you first try a particular Alternative Dispute Resolution procedure and does not solve the problem. These court-related programs go by various names and include; court-ordered arbitration. This kind of arbitration is ordered by a judge, and you must participate. However, the arbitrator’s decision usually is not binding. So, if you or the other party are not satisfied with the decision, you still can take your case to court. Mini-trial, early neutral evaluation, mandatory settlement conferences, these are some other ways to use Alternative Dispute Resolution. Each is used mostly for business disputes. Generally, with these processes, both your attorney and the other party’s, present each side of the story to a neutral third party advisor or a panel of advisors. The neutral advisor or panel weighs the evidence and makes and "advisory" decision. This means you can either accept the decision or take your case to court.

5. What kinds of disputes can be settled by Alternative Dispute Resolution?

Here are some examples of some, but not all, kinds disputes that can be settled without going to court:

-landlord/tenant problems such as security deposits, nonpayment of rent, repairs, evictions, apartment entry, lockout.

- neighborhood problems such as noise, pets, nuisances, use of common property lines, parking,

- consumer/merchant problems such as refunds, warranties, repairs, deposits, services,

-employer/employee disputes, such as contracts, wages, dismissal,

-small claims: debts, accidents, property

-family law: divorce settlements, custody visitation schedules, spousal and child support.

-business: setting up or shutting down a business, business disputes, real estate transactions,

-domestic: problems with roommates, friends, family members

6. Can you use Alternative Dispute Resolution even after a lawsuit is filed?

Yes. You and the other person can agree to use Alternative Dispute Resolution either before or after a lawsuit is filed. In fact, more than 90 percent of all the lawsuits that are filed in court are settled before the trial begins.

7. Who are the mediators and arbitrators?

Mediators and arbitrators come from all walks of life; business persons, bus drivers, educators, psychologists, doctors and lawyers. A number of California dispute resolution programs operate under the Dispute Resolution Programs Act. In order to support the programs, this law allows counties to increase the fees that people pay to file lawsuits and court documents. It also says that the State Department of Consumer Affairs will regulate the programs, and that the neutral third parties must be trained in certain ways.

There are a growing number of private, paid mediators who work outside these regulated programs, as well, as many mediators and arbitrators who volunteer their services for little or no pay.

8. How do the charges compare with lawsuit costs?

Most disputes that you volunteer to take to an alternative dispute resolution program are settled in a few hours. And, programs run by both the courts and community organizations usually use neutral third parties who are volunteers, so the programs may charge low fees or none at all. As a result these programs can offer big savings over lawsuits that can take much more time. Mini-trials and other more formal procedures are more complex. So, they can be more expensive that conciliation, medication and arbitration. But, they are often les expensive that court trials.

Also, many alternative dispute resolution programs offer free or low-cost services for low-income persons. You will have to make your own decision about whether to get advice from an attorney when using alternative dispute resolution and whether the attorney should attend the session with you. It may be a good idea to talk with a lawyer, however, to make sure that you understand everything that is involved. For example, let’s say that you are getting divorced. The way you work out a property settlement can affect more that whether you get the house or the car. It can also have a lot to do with the amount of taxes that you will pay. If you do not want a lawyer, ask a friend, co-worker, employer, or business associate to recommend one. Or, call your local state bar-certified lawyer referral service. The person who answers your call can make an appointment for you to see a lawyer. If you decide to hire the lawyer, make sure you understand what you will be paying for, how much it will cost and when you will be expected to pay your bill.

9. Are there any disadvantages?

Because alternative dispute resolution is confidential it may not be the best solution in certain cases. For example, you may want to make people in your community aware of a particular issue, such as animal rights or environmental problem that is involved in your dispute.

10. What if you are not good at speaking up?

If you do not speak up during the dispute resolution session, the neutral third party may decide to meet separately with you and the other person, so you both can feel comfortable about having your say.

Suppose it turns out that you need additional information to prove your case. Maybe you need a friend’s moral support. The neutral party also may refer the dispute to a different program or agency if it appears that you or the other person feels forced into an agreement. This also may happen if one of you needs help because you are developmentally disabled or have a language problem.

11. How can you be sure that the other person will want to use dispute resolution?

Ask the other person to meet with you and a neutral third party with no strings attached. The neutral party can explain the advantages that alternative dispute resolution has over a lawsuit. Often, an explanation is all that is needed to convince people that alternative dispute resolution is a worthwhile step.

12. How can you find an Alternative Dispute Resolution Program?

You can get in touch with the State Department of Consumer Affairs, which regulates the programs that operate under the dispute resolution programs act. This government agency publishes a directory of the programs. For a free copy, contact the dispute resolution coordinator, Department of Consumer Affairs, 1625 N. Market Boulevard, Ste. 5309, Sacramento, CA 95834 or telephone (916) 574-8220.

The Los Angeles County Bar Association Dispute Resolution Services (DRS) offers community mediation services for the following kinds of disputes; landlord/tenant, consumer/merchant, workplace related, property damage neighbor/neighbor, and family. DRS also offers arbitration and mediation services for attorney-client fee disputes, as well as school based peer mediation programs. For details on these programs as well as other county resources, call (213) 896-6533 or go to their website at

The State Bar of California, through it s office of legal services and the standing committee on legal services to middle income person, helps promote delivery of legal services to the public. For more information, contact the program development staff for the Office Of Legal Services, Access & Fairness at the State Bar of California at (415) 538-2267.

The purpose of this message is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer.




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