Pilar Vaile, P.C. focuses almost exclusively on providing neutral
alternative dispute resolution (ADR) services throughout metro Albuquerque, greater New Mexico, and western and mid-western/central United States.
The firm and its principal, Pilar Vaile, believe in and are committed to helping individuals and organizations achieve their conflict resolution—or conflict management—goals at the lowest possible level of disruption. In our experience, moreover, clients can frequently manage their conflict issues at lowest level of disruption simply by accessing information about their options. It is in that spirit, that this ADR page of general information is offered.
|II.||Mediation and Facilitation|
|III.||Conflict or Communication Coaching|
|IV.||Arbitration and Administrative Adjudication|
Most people easily recognize that going to court can be very expensive, time consuming
and draining. They may not realize, however, the extent to which simply ignoring the
problem can create its own issues. Frequently, it leads in turn to festering, passive
aggressive responses, loss in moral, and/or eventual escalation.
In between these two polar points, however, there is a broad array of options that can help. A sample of the ADR services this firm offers include:
Whenever two good people argue over
principles, they are both right.
- Marie Ebner von Eschenback
Every conflict we face in life is rich with
positive and negative potential.
- Kenneth Cloke & Joan Goldsmith
The aim of an argument or discussion
should not be victory, but progress
- Joseph Joubert
At their most basic, mediation and facilitation
can both be understood as "facilitated negotiations" or “facilitated dialogue.” In its Preamble, the
Uniform Model Standards of Conduct for Mediators define mediation broadly as “…a
process in which an impartial third party facilitates communication and negotiation and
promotes voluntary decision making by the parties to the dispute.”
Mediation's most important principles are party self-determination, impartiality and confidentiality. Beyond those basics, however, mediation may utilize any number of techniques for getting the parties to speak to and listen to one another, such as:
and methods to support the parties’
resolution of their dispute
All wars are follies, very expensive and very mischievous ones …
[T]here never was a good war or a bad peace. When will mankind be
convinced and agree to settle their difficulties by arbitration?
- Benjamin Franklin
Administrative hearings, which are usually provided for by a law or statute, also involve a third party decision-maker. They arise as part of an administrative action, and can occur in an innumerable settings, such as tax disputes; labor disputes; employment discrimination disputes; and disputes concerning the issuance, suspension or revocation of various licenses (professional, drivers, recreation or liquor, to name a few). As I’ve written elsewhere,
Throughout our national history, the number, breadth and scope
of administrative agencies have steadily expanded. Today, the
average citizen is vastly more likely to be involved in some kind of
administrative hearing, than a judicial one. Therefore, the fairness
and due process afforded in administrative proceedings must
always pass constitutional muster, both to protect the agency and
to reassure citizens that their government continues to fully and
fairly consider their interests, even when he or she disagrees with
- Pilar Vaile, JD, CALJ
In both arbitration and administrative adjudication,
the parties lose the ability to control or manage the outcome of the
proceeding. Resolution or decision making is instead deferred to a neutral third party.
Because of this, although more informal and streamlined than ordinary litigation, both
must still meet the basic constitutional standards of minimum due process, including
notice and opportunity to be heard on facts relevant to the claims or defenses.
Once an administrative or arbitration decision is rendered, it can usually only be overturned on very narrow grounds. Administrative adjudications are only overturned for abuse of discretion, lack of substantial evidence, or clear error; arbitration awards for lack of jurisdiction, fraud, evident bias, or misconduct by the arbitrator. See, e.g., Federal Administrative Procedures Act, 5 USC § 706, and Uniform Arbitration Act (UAA), Sec. 23.
Med-arb, short for mediation-arbitration, is a hybrid between the two processes in which a single ADR professional will initially seek to mediate a dispute but, if a resolution is not possible, he or she will then proceed to arbitrate the same dispute.
Under the Uniform Model Standards of Conduct for Mediators, a mediator may not change his or her dispute resolution role without party consent, or if he or she feels it cannot be done fairly and impartially. Another complication is that statements made to the mediator are confidential, and not to be used in a subsequent hearing. A question naturally arises, then, as to how the mediator-arbitrator can keep the original confidences. See Kristen M. Blankley, Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case (draft), available at http://ssrn.com/abstract=1793515.
Because of this, a med-arb practitioner may determine—with proper disclosure—to simply render a decision based on all statements heard/evidence observed in the course of mediation, whether or not such statements would ordinarily have been “confidential” in an ordinary mediation.
We hope this information has been of some help to you in understanding generally what ADR is, and what potential ADR tools exist. Offering a variety of ADR services, we urge you to contact us to help evaluate which method is most appropriate to your dispute resolution needs.
|Pilar Vaile Lic. NM, CA||Phone: (505) 247-0802|
|215 Central Ave N.W., Ste. 3C||Fax: (505) 247-2775|
|Albuquerque, New Mexico 87102|