Frequently Asked Questions
What is arbitration?
Arbitration is an alternative to litigation and a method of resolving disputes. The parties involved agree to submit the dispute to review and binding decision by a neutral third-party (the arbitrator). Arbitrated matters typically involve limited discovery, submission of relevant evidence at a hearing, and conclude with a final award (decision) that is legally enforceable by and against the parties.
What is mediation?
Mediation is another method to resolve disputes. In mediation the parties voluntarily exchange facts and positions and, with the aid of the mediator, they attempt to reach an agreed resolution of the dispute. Although facts and the law matter, mediation will involve examination of the parties’ common interests and their ideas for settling a controversy. A successful mediation ends with a written settlement agreement made by the parties. The mediator facilitates the process but makes no determinations; mediation is a process where the parties themselves determine the outcome.
What other services are available from KDR?
Fact-finding and early neutral evaluation (ENE) services are available. Fact finding is an investigative tool and will involve establishing facts and providing evidence-based conclusions to a party in a written and confidential report meant to address developing problems that could impact a transaction, a business plan etc. ENE is designed to provide the parties with a non-binding but informed neutral evaluation of the best and worst case results that can be expected in a given situation. The ENE is meant to assist the parties in their attempt to negotiate an agreement with each other.
How predictable are the costs of ADR?
Compared to litigation, ADR costs are much more predictable. KDR rates for arbitration and mediation services are available for review. Fees for fact-finding and early neutral evaluation are established on a case-by-case basis. Separate from the KDR fees, parties may incur costs for their own preparation of their cases, counsel, research, experts, travel and the like, all of which can be budgeted. KDR recommends that parties create a realistic time line and plan for the conduct of the ADR process and sensibly budget for costs. In addition, it is expected that parties will make good faith efforts to cooperate with each other in the process in order to benefit from the cost savings and efficiencies that ADR, properly used, will provide.
Is ADR confidential?
Mediation is confidential. The parties stipulate in the KDR mediation agreement that nothing said or used in the mediation can be used in any other way or in a subsequent proceeding. If a settlement is reached, the settlement agreement in mediation may contain a confidentiality provision so that the result of the mediation may also remain confidential. The exception is that parties often want to allow the settlement agreement itself to be available to others. Like any written agreement, a party may sue for enforcement or breach of the agreement made through mediation, and a subsequent court proceeding may destroy confidentiality.
A KDR arbitration is a private proceeding but depositions and a hearing transcript can be ordered that would create a record for possible use at or after the arbitration. Parties may stipulate to retain the confidentiality of the evidence and even the award, although the award will typically be available to others and the evidence (testimony and documents) may be independently obtained and used in other proceedings. A court proceeding for enforcement of an award by its nature may destroy confidentiality since a court may not maintain the confidentiality of any information provided in the case brought to enforce the arbitration award.
The agreement for ENE requires confidential treatment of all materials and that any written evaluation cannot be used for any other purpose.
IS the result binding and enforceable?
The award in arbitration is a binding decision, enforceable in the courts. The decision of the arbitrator can be reviewed by the courts and overturned in only very limited situations. Mediation results in a settlement agreement that will typically include as a term that the agreement is a binding agreement of the parties and include the parties’ agreement to submit further disputes (about the subject matter of the agreement) to mediation, arbitration or the courts.
How do I initiate an ADR procedure with KDR?
Review the information on this website and then contact KDR to discuss the potential for KDR to perform services. Initial contacts will involve limited and brief case intake inquires, and will not involve any review of the details or merits of the matter. KDR encourages parties (or respective counsel) to jointly contact KDR; this is most efficient as each of the parties is fully involved and participating from the outset of the process.