Mediation / Arbitration
Mediation vs. Arbitration and Civil Disputes
In civil disputes, it is sometimes possible to resolve the issues that are involved through alternative dispute resolution methods rather than through court litigation. In some areas of the law, including business, employment law and some personal injury matters, the parties may choose to handle their disputes through mediation or arbitration. While these processes have some similarities, they are also different. Some cases are not appropriate for either alternative dispute resolution method and are instead better left for litigation through court.
Understanding Mediation vs Arbitration
Mediation is an out-of-court process in which both parties to a dispute agree to meet with a trained mediator. Mediators facilitate reaching agreements through skilled negotiation. The process is an informal one. If a full agreement is reached at mediation, the parties may then treat it as a contract that will control how they proceed with their businesses or, in personal injury mediation cases, a mediated agreement may serve as a settlement agreement between the parties. It is not a binding process, meaning that the mediator does not decide the outcome of the case for the parties. This means that if the parties are unable to reach an agreement, they may still proceed with their matter through litigation in court.
Arbitration is similar to a mini-trial that is held outside of court. It is a more formal procedure involved a trained arbitrator who will take evidence and issue a decision regarding the dispute. Normally, the parties agree to the arbitrator’s decision being binding, meaning that it will be a final one that is not able to be appealed to the court system. When an arbitrator issues his or her ruling, the ruling serves as a contract between the parties outlining what the expectations of each will be.
In business disputes involving allegations of contract breaches, the arbitration ruling will replace the contract as it existed before, becoming the new one with which both business parties will work moving forward. Many contracts contain arbitration clauses through which the signatories agree to submit any disputes to arbitration rather than filing formal lawsuits in court.
Determining Whether Cases are Appropriate for Mediation vs Arbitration
The advantages of utilizing alternative dispute resolution procedures to handle disputes are several. The processes are much faster than litigating matters through court. In personal injury cases, for example, it may take several years for a case to make it to trial. The same case may be resolved much more quickly in personal injury mediation or arbitration, allowing the parties involved to move on. Both processes also typically save the parties substantial litigation costs that would otherwise be expended in court litigation.
Despite these possible benefits, not all cases are appropriate for these alternative dispute resolution procedures. The processes may be inappropriate in cases in which one party has a significant degree of power over the other party. They are also inappropriate in cases in which one of the parties is unwilling to compromise in order to try to reach an agreement or a ruling. Because of the inability for people to appeal arbitration rulings, some people who are seriously injured in accidents may want to consult with their attorneys before agreeing to arbitrate the matters.
What Happens During the Mediation Process
At the beginning of the mediation process, both parties select a neutral third party who will serve as the mediator. On the scheduled date, the parties meet at either the mediator’s office or at a different selected location. The mediator may choose to meet with both parties together in a group meeting or to instead meet with each one individually in separate rooms, going back and forth them in an attempt to facilitate an agreement. If an agreement is reached, the mediator will draft it for both of the parties. The parties will then be advised to consult with their attorneys regarding the mediated agreement, and if it is determined to be acceptable, it will be the final settlement of the issues of the case. If no agreement is reached, then either party may choose to pursue the matter through court instead.
What Happens During the Arbitration Process
The arbitration process happens outside of court, as well. The parties go to the selected location on the scheduled date with their evidence and witnesses. The arbitrator will hear evidence and take testimony, and witnesses will be subject to the questioning and cross-examination of the respective attorneys. At the conclusion of the case, the arbitrator will issue his or her ruling, which will be a final and unappealable determination of the case’s outcome.
Choosing a Mediator or Arbitrator
Mediators are normally lawyers who have specialized training in mediation, such as our partners, Jon Abernathy & Jim Browne. They are either lawyers or retired judges who have significant experience and training in arbitration. When choosing a mediator or arbitrator, both parties must agree to the one that is selected. It is often best to choose one who is located nearby and who focuses in the area of civil law with which the people have a dispute. To learn more about mediating or arbitrating a civil dispute, contact Goodin Abernathy to schedule your consultation today.