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Mediation vs. Arbitration in Promissory Note Case?

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Mar 8, 2012 8:51 pm

I am currently in the midst of my Promissory Note case with my former firm (large wirehouse, signed long contract, awful firm, left before end of contract, they filed, we filed counter claim, arbitration scheduled, etc. etc.).  I have been working with attorneys from the start and have been going through the motions since my "Demand Letter" arrived.

We have a scheduled Arbitration a few months from now and my attorney heard from my former firm's attorneys asking, "in light of all of the work to be done in advance of the upcoming Arbitration, would we be interested in Mediation?" I view this as a positive for a number of reasons (e.g. Mediation is not "binding", etc.).

I am just wanting the opinion of ONLY those people with knowledge (no BS answers from Brokers who have no experience with this and should be working anyway insead of giving smart a$$ answers to things that they know nothing about). My question is: is mediation a "better" solution vs. Arbitration?

Any knowledgeable insight would be greatly appreciated!!! Thank you!!!

Mar 8, 2012 9:41 pm

Having been through arbitration on this I can offer the following.  You are correct, mediation is not binding.  However, the point of mediation is to reach a point in the middle that both sides agree on.  In other words, you will not get all you want, nor will they.  Arbitration, on the other hand, is most likely going to be a win for one side or the other.  I would say the odds are against the counter-claimant (you) in the vast majority of cases.  I was fortunate to win my case but I was able to produce a number of corroborating witnesses and had notes and other written evidence.  I think that is the main key to winning.  You have to be able to support your case with more than a "I was told this....", etc., etc.

The best outcome would be to settle outside of mediation or arbitration.  If they have indicated a willingness to mediate, it usually means that a) they don't have a very strong case, or b) they don't want to go to the expense or take the time to go to arbitration.  They could be willing to settle but it is often an 11th hour thing.  My 2 partners settled for 10-15 cents on the dollar but their cases came after mine (against same firm), so I had set a precedent with the outcome of my case.

Remember also that your attorney's fees, depending on your arrangement with them, can cost you more than it is worth to go through arbitration, even if you win.  Also, you will likely owe taxes on the "forgiven" portion of the loan if you win.  You can have the satisfaction of winning but still lose in a pure economic sense.  And, if you lose, you owe them the money plus your attorney's fees.  Again, settling is the best course.

Please feel free to PM me if you would like to discuss privately by phone or otherwise.