A more recent development in ADR is binding mediation. In it, the parties agree to first try to settle their dispute through mediation — but, if they are unable to reach agreement, they give the mediator the power to make a decision for them. Unlike with Med-Arb, the mediator doesn’t become an arbitrator, and there is no formal Arbitration hearing. Instead, the mediator makes his decision based solely upon what he has learned during the informal mediation process.

But what happens if one side or the other doesn’t like the mediator’s decision, and takes the position that the mediator doesn’t have the power to impose an outcome on the parties, even if the parties have attempted to give him that power? While there had previously been some uncertainty in California on that question, a recent California Court of Appeal decision (Bowers v. Lucia) has now made clear that parties to a civil dispute do indeed have that power — and, as long as they have clearly and completely described in a written settlement agreement the process by which the mediator is to resolve the dispute if necessary, the mediator’s decision will be enforceable by the court.

Does this mean that parties to a civil dispute should always agree to engage in binding mediation? Not necessarily. Here are some thoughts as to the “pros” and “cons” of using the binding mediation process...

Read the full article here: http://www.northbaybusinessjournal.com/57386/binding-mediation-a-wa...


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