Among the services that Theise Law provides is Alternative Dispute Resolution, principally mediation and arbitration; businesses internal organization conflict assessment, and, occasionally, ombudsman services for small businesses.

I am a qualified Massachusetts Mediator (and generally meet the requirements of virtually all States) and for many years now actively engaged in ADR. A Mediator is a neutral with no power or authority to decide a matter, seeking to bring parties to mutually agreed resolution. The opportunity for resolution either without litigation or during a litigation provides parties cost effective and timely resolution.

Although many use the terms Mediation and Arbitration synonymously, they are in fact two completely different paths to resolution. Mediation is an informal and non-binding process between parties who voluntarily seek to attempt resolution and is the most popular and virtually least costly form of ADR. It is not binding on the parties until the parties reach agreement, at which time a binding written agreement is then created.

Experience has taught me that regardless of the parties’ willingness to come to mediation, it takes an experienced Mediator to bring parties to the point of readiness to settle.

Arbitration Vs. Mediation

As a Mediator I have yet to fail to conclude a meeting of the minds of the parties, including in multiple party mediations (meaning more than two parties in controversy), when parties have come in good faith. Most mediations take a day or less, but some last over multiple days, and some have been suspended to give parties needed time to consider matters that arise and need reflection.

Arbitration on the other hand is different from Mediation in that Arbitration is binding and generally the parties are obligated to Arbitrate by contractual obligation. The Arbitrator(s) have both the power and authority to decide the case. Arbitrations are formal and are in essence non-court trials, and Arbitration Awards are enforced by Court Judgments. Arbitration is also much more expensive than Mediation.

A General Comment About ADR

When I advise clients about including ADR provisions in their contracts, I clearly explain the difference between Mediation and Arbitration, and particularly with respect to Arbitration Clauses the importance of specifying the rules and scope of the Arbitration, without which specification Arbitration generally excludes no issues from becoming before the Arbitrators and may preclude judicial remedies otherwise available.

There are additional alternative dispute services that I provide which include serving as an Ombudsman, principally to small or medium sized businesses, which cannot afford or justify a fulltime ombudsman. The Ombudsman is a neutral, conversations are confidential, and is intended to be an informal way to make a complaint either by an employee or employer who wants to get a confidential anonymous message to someone within the organization, without triggering a formal legal matter.

I have also been engaged to do internal organizational conflict assessments, generally for non-profits, where it is not unusual for differences to arise between the professional(s) who run them, and the volunteer officers and directors, generally over governance issues and definition of roles in the organization.

In another capacity as a regional president of a national organization, I traveled the country performing Board Trouble Shooting, and/or Board Development. After a while, I added this as a professional service to my ADR Practice.

Jay Frederic Theise
Law Associates LLC