Arbitration and Mediation

Arbitration

Arbitration is an alternative to conventional litigation in the courts, whereby a dispute is submitted to one or more neutral arbitrators for a final and binding determination.  Arbitration awards are then submitted to a court for entry as a binding judgment.

Arbitration is a private forum, conducted by agreement and generally administered by a private service.   Hearings are closed, and proceedings are not a matter of public record.  Because the discovery and prehearing process is generally more streamlined, and cases often proceed faster than in the courts, arbitration can be significantly more cost effective for the litigants.

While generally faster and more cost efficient than litigation in the courts, the process nonetheless typically allows for a significant exchange of pre-hearing discovery materials, taking depositions, and the full presentation of relevant evidence, briefing and argument at the final hearing.   However, the process is more flexible than litigation in the courts, and the parties and the arbitrator generally work together to design a prehearing process that can be expedited and is appropriate to the particular circumstances.

The process is particularly well suited for complex business and technical disputes, since—unlike judges–arbitrators can be selected by the parties for a specific case based upon the arbitrator’s general or specialized knowledge of the subject matter at issue, as well as his or her prior experience and service as an arbitrator.

Because an arbitrator’s decision is typically binding on the parties and often represents the final resolution in any dispute, the choice of an arbitrator is especially important.   Arbitrators must have high ethical standards, significant experience in dispute resolution, appropriate training in the conduct of prehearing and evidentiary hearings, and a wide range of knowledge and prior experience to draw from.

At Cotten Schmidt & Abbott, L.L.P., Brian Esenwein and Brent Brown have significant training and experience both in representing parties in arbitrations and in serving as arbitrators.  Daily and hourly rates for binding or non-binding arbitrations are available to interested persons upon request.

In addition, other Cotten Schmidt & Abbott, L.L.P. litigators routinely represent individuals and companies in arbitrations in a great variety of jurisdictions, prosecuting and defending claims.  Other related work includes drafting and reviewing arbitration clauses and related contractual provisions.  The firm’s attorneys are also able to provide review and guidance for clients as to claims and defenses in arbitration, as an aid to the evaluation of potential or actual claims.

Mediation

Formally established by statute in Texas and many other states, Mediation is the formal process of confidential dispute resolution by negotiation, facilitated by an impartial, trained and experienced Mediator.  While the parties retain the right to make their own settlement decisions, and are never compelled to agree to any proposed settlement or other resolution, nonetheless mediations are more often than not successful in resolving the dispute.  In mediation,   the parties retain control over how their case is resolved, and in many instances have the opportunity to negotiate a resolution on terms that might not be available through a Court.  Through mediation, clients can significantly control the cost in time and money of bringing a dispute to resolution.

In recent years,   Courts have begun to refer almost every case to mediation at some point in the pretrial process.  The mediator is generally appointed by the Court in each matter, or at times is chosen by agreement of the parties and counsel.  Experienced mediators use a variety of experience and skill sets in facilitating dispute resolution, and the selection of a mediator with appropriate skills and demeanor for the particular dispute at hand is always of great importance.

Cotten Schmidt & Abbott, L.L.P. lawyers therefore represent clients in mediations in a great majority of the cases handled by the firm.  In addition, Brent Brown and Brian Esenwein have served as mediators for more than 20 years for cases in Tarrant, Dallas, and Collin counties, as well as in the Northern District of Texas.  In our New Orleans office,   Charles Abbott is a certified mediator whose practice includes both serving as a mediator,   and in representing clients in mediations.  Upon request, references from attorneys and Judges can be provided for consideration by the parties, with the assistance of counsel.

Our service as mediators includes the resolution of complex business and personal litigation involving issues as diverse as intellectual property, fraud, contract claims, employment disputes, trade secrets, fiduciary duty disputes, bank litigation,  mass torts, personal injuries, medical malpractice, and many others.

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