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VirtualCourthouse Overcomes ADR Resistance
How Do I Persuade My Opponent to Participate in a Mediation or Arbitration?


Persuading an opponent to participate in mediation or agree to binding arbitration is often very difficult. More times than not, when a party suggests binding arbitration, it is received in an adversarial context. After all, the adversary/opponent has suggested or broached the subject --how could that be good news? Is the suggestion a sign of weakness or fear of litigation? Or, is my opponent trying to get an advantage? For that very reason, the answer is most often no.

To overcome this negative reaction, the VirtualCourthouse team has experienced that time and again, a Neutral party, representing the process, can pave the way. Isn’t that precisely what happens when a Judge suggests that the parties consider an alternative, such as mediation or arbitration, to going to court?

VirtualCourthouse, which represents and advocates for the process and is neutral, can assist you. VirtualCourthouse and the VirtualCourthouse team adds a new element to the persuasion processes. Consider this; the VirtualCourthouse team is a neutral organization representing the values of mediation and arbitration without having a stake in the dispute.

Many VirtualCourthouse attorneys have found that instead of suggesting mediation or arbitration to their opponent, they’ve had success in letting VirtualCourthouse send an invitation for them. It keeps them out of the loop. And your part is easy! The only thing you need to do is start your case with VirtualCourthouse and select three suggested Neutrals from the list. The VirtualCourthouse team does the rest.

10 VirtualCourthouse Values.
1. Sends a formal invitation by letter.
2. Sends a formal invitation by e-mail.
3. Follows up with a telephone call.
4. Explains the benefits of Arbitration/Mediation and VirtualCourthouse.
5. Advocates the advantages of the alternative dispute resolution process.
6. Emphasizes the VirtualCourthouse team’s neutrality.
7. Reduces the opportunity for your opponent to say NO to you in a negotiation.
8. Maintains an official record of your desire to be fair by offering a neutral resolution.
9. Keeps records of all of your offers - to all parties - a value to use over time.
10. Saves money and time for your client; show your client that you are on the cutting edge advocating for them.

You’ve probably been there before. When building a strategy to persuade your opponent, put yourself in their shoes. Consider and address each main factor which motivates a desire to mediate/ arbitrate.
1. Reality of pending court proceedings.
2. Cost of court proceedings - attorneys fees, time away from work or business.
3. Time required by court proceedings - a dispute hanging over a party is emotionally draining.
4. Availability of numerous qualified neutrals from which to choose.
5. Reasonable cost of a neutral and the alternative process.

As you consider each factor quantify the cost. If it is greater fees - how much? If it is more time - How long? Not only will this analysis help you and your client and it will also help your opponent be more receptive to the invitation sent by VirtualCourthouse.

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by Judge Arthru M. Monty Ahalt ( Ret.) - November 6, 2009

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