Mediation and Arbitration

27 March 2024

If you end up in some type of legal dispute (civil or tort, not criminal), very often the first thought is a law suit.  However, there are other options including mediation and arbitration.  These latter are often confused.



This is frequently a voluntary effort to come to some sort of compromise.  It is often seen in divorce cases.  A mediator is an individual who listens to both sides and guides the discussions to a satisfactory conclusion.  The mediator can be an attorney, a therapist, a retired judge, or someone trained in the ability to guide and facilitate the talks with a minimum of blame, anger, or conflict.

This is a non-binding process.  That means that the parties can end up with no solution.  However, often judges will order mediation to resolve the situation without a lengthy court process.  As a neutral third party, the mediator helps all the participants find the best results for all concerned.  Depending on the situation, that can include ancillary individuals or groups who are not actually part of the discussions.  Then, an agreement is written for signatures, which can be filed with the court without the necessity for a hearing or trial. Getting a trial date could take a long time.  This way the issues are resolved quicker.

Mediation usually ends with the people involved feeling a win-win resolution.  Since it is not binding, if there is no outcome satisfactory to the parties, the law suit can go on as planned.  Mediation is certainly less adversarial.  This is a particularly good option when couples are divorcing, especially if children are involved.  Co-parenting is difficult at any time but if there is constant friction, it is very hard on the kids.  Obviously, mediation is significantly less expensive than a full blown trial.

However, mediation only works when the individuals are willing to compromise.  Communication is a key element.  If one of the parties does not fully understand their rights or there is a situation of intimidation (like a big corporation against a single individual, or a case of domestic abuse, etc.), there can still be an inequitable result.

legal, court, mediation


Arbitration may seem similar to mediation but operates differently.  An arbitrator, or arbiter, is an independent third party who has the authority to make a decision in a legal matter.  Often these are retired attorneys or judges, or someone with enough legal training to be competent to make decisions.  It is like a trial but not in front of an active judge or jury.  Contracts often have a clause that requires the parties to resolve issues through arbitration.

Each side presents evidence and witnesses just like in a trial, although it is less formal but the legal processes still apply.  Unless there are irregularities, the arbitrator’s decision stands just like if it were tried in a courtroom.

So, the issues get resolved much faster than if you wait for a trial date and it is generally less expensive.  The parties get to jointly select an arbitrator rather than taking whatever judge gets assigned to the case and since things are a little more relaxed, it is somewhat less stressful.

The downside is that the decision is less likely to make both sides happy.  There will definitely be a win-lose outcome.  There is also less chance of an appeal.



As mentioned at the start, you can understand why the two processes can be confused.  They both work with an independent third party and not a formal trial.  They are both less expensive and the whole matter should be resolved sooner than waiting years for a court date.  Both sides get to choose the person who will preside over the process.

Here is how they are different.  Mediation is more collaborative and generally comes out as a compromise but arbitration is usually legally binding and will then rule out opting for a trial.  Arbitrators make a final decision but mediators help the parties find their own best solutions.  Mediation is very give-and-take, but arbitration is adversarial.

If you have a non-criminal (civil or tort) issue, consult with an attorney to decide your options and decide the appropriate course of action.

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