Nebraska Mediation, Arbitration and ADR Services


What are the pros and cons of litigation, mediation and arbitration as a dispute resolution strategy?


Choosing an appropriate dispute resolution strategy is one of a Nebraska lawyer’s most important responsibilities as a client’s advocate.  The choice can have a profound impact on the relationship between the parties and the resolution of the conflict.  Not all disputes warrant the same approach.

Advice from experienced litigators on whether to mediate, arbitrate or litigate a dispute

Martindale-Hubbell asked several peer review rated litigators for their view on what the primary considerations are in selecting a dispute resolution strategy.  The litigators surveyed identified several key considerations:

  • Nebraska Dispute Resolution Strategyfocus on “the consequence of losing” and how it will impact the parties in their dealings and reputation; mediation offers more creative ways of crafting a voluntary resolution
  • whether the parties seek to preserve an ongoing business relationship (if so, direct negotiation or mediation are best choices)
  • planning early in the case-review process to prepare for an experienced mediator or arbitrator who is more informed and sophisticated than the average courtroom jury
  • whether it is important for your client to hear the other side’s position directly from them; if so mediation can be useful even if the dispute is not resolved after the session
  • whether the dispute involves complex or technical details; if so, arbitration may be better
    • Daniel F. Shank: “Arbitration is about replacing the legal system with a streamlined, sophisticated arbiter”
  • whether each party genuine believes they will prevail, using a nonbinding summary jury trial can result in valuable feedback to the parties that may prompt them to reevaluate their positions and facilitate a settlement
  • when threshold legal issues need quick rulings and more control over pretrial matters is important, private judging with streamlined procedural rules and more active case management may be a good fit
  • whether the parties are located in multiple jurisdictions; if so, arbitration has advantages of a neutral forum
  • whether the parties would prefer confidentiality of the dispute and resolution; both mediation and arbitration allow the dispute and any settlement or award to be private

The advice of attorney John F. Mariani is:

Mandatory arbitration, once viewed as the be-all, can be straightforward and definitive but is not necessarily as streamlined as it once was, and possibilities of appeal are practically nil. Mediation tends to work best as a precursor to arbitration or trial, giving both sides a glimpse of things to come and an objective outsider urging peace in place of war. Trial, while certainly the most involved, at least allows the check and balance of meaningful appellate review. Which to use? Focus on the level of complexity of the dispute; then, match a resolution methodology to that.

Need help choosing a dispute resolution strategy for a Nebraska case?

Affirmative Dispute Resolution has a number of experienced and qualified neutrals in Nebraska that are available to provide various private dispute resolution services, including mediation, case evaluation, arbitration, summary jury trials, and private judging.  If you are weighing the pros and cons of one particular method, we would be happy to assist you.  Call 402-835-6300, send us a message, or submit a case online.

Source: Weighing the Pros and Cons – What should be my primary considerations in choosing a particular dispute resolution strategy?, Counsel to Counsel 2-4, Martindale-Hubbell (July 2007).

Ben Thompson
Follow ADR!

Ben Thompson

Ben Thompson is an attorney licensed in California, Iowa, Minnesota and Nebraska. He is the founder of Affirmative Dispute Resolution, a provider of ADR services in Omaha, Nebraska.
Ben Thompson
Follow ADR!

No comments so far!

You must be logged in to post a comment.