Litigation is time consuming and expensive. Instead, many opt for dispute resolution whenever possible because it eliminates the need for a jury and provides more control for the parties. The two primary types of dispute resolution in the American court system are mediation and arbitration. If you are looking into dispute resolution there are key differences you will need to understand before heading into your hearing.
- What is it?
A mediator is hired to manage a dispute between organizations, people, states or similar communities.
- What is it for?
A mediator is brought in to help disagreeing groups find new options for their problem so that a solution both parties agree on can be reached. However, the mediator will not make a decision for these groups and the control is retained by the parties.
A mediator will not provide a judgment. A Mediator’s job is to facilitate dialog between the parties to reach a solution. If an agreement is reached this is not binding unless it is in writing and there is an active case number filed with the courts regarding the dispute.
- When it applies
Mediators are asked to assist with minor disputes by people who are hoping to completely avoid litigation. In some cases a mediator is brought in if the parties believe that they need a neutral party with expertise or believe that confidentiality rules would assist to resolve the matters outside of court.
- What is it?
An arbitrator is asked to act as a neutral body when hearing a dispute occurring outside of a court room, but is expected to render a decision that is usually enforceable in court.
- What is it for?
An arbitrator acts as a judge over the dispute and will help to resolve the conflict at hand. The arbitrator will make the final decision regarding the matter at hand and those participating will have to follow it.
Arbitrators are brought in as judges to resolve a dispute that would otherwise go to court.
- When it applies
An arbitrator is used for major disputes or when the parties involved are being unreasonable. In some cases an arbitrator will be brought in if it is believed that the person presiding over the case should have expertise of the relevant subject matter. An arbitrator’s conclusions are typically legally binding and must be followed after the hearing.
Comparing the Cost of Mediation and Arbitration
Mediating a dispute usually takes much less time than going through litigation. In some cases a dispute can end in just a few hours of discussion if both sides agree to work together to find a solution. The fee for hiring a mediator is often much less than working with an arbitrator.because mediators usually work outside of the court system and usually do not need to remain available for long periods of time, Instead of creating an atmosphere where the litigator is the authority, mediators only come in to help people keep the dialog going between the parties.
Arbitration can take a long time to get through because it must follow proceedings similar to a courtroom. Both sides must be given the opportunity to present all of the facts to the arbitrator. All sides of the story must be heart in turn and the arbitrator must be given time to review all of these materials before any sort of decision can be made. There are often filing fees and discovery processes that are different than typical court proceedings. It is very important to see this process through because the decision made by the arbitrator will be legally binding in most cases. In most cases arbitration is a last resort for parties that are no longer capable of working together to come up with some sort of solution.
Determining Pre-Mediation Contracts
If you are working with a mediator in a dispute there are a few things you should establish beforehand. Drawing up a mediation contract can help to ensure that everyone involved understands and agrees to these terms.
- Ensure that all parties understand that this decision is non-binding.
- Agree on a fee that will be paid to the mediator and who will pay it. In most cases the two disputing parties pay half each.
- Agree that both parties will continue to work with the mediator until both sides agree that there is no point in continuing. This will either come when an agreement is reached or when there is an impasse where neither side can agree to a solution.
- Set a designated time limit for mediation to occur. This is often a half or full day. This helps to keep the participating parties focused and actively participating.
These types of contracts are not necessary with an arbitrator because the participating parties are not able to choose the arbitrator that they work with. If it is determined that a dispute must go to arbitration an arbitrator will be assigned to oversee the case and will explain all proceedings at this time.
If two parties have a dispute that has been going on for some time and it does not seem to be improving then it may be time to bring in a third party. In most cases parties will start by working with a mediator to help keep discussions of the problem organized and will move onto arbitration if this fails, though this will only apply to situations where the conflict is legal in nature. There is a list of mediators and arbitrators available through each state’s bar association to help individuals find the professionals they need.
When disputing a legal case, it is often best to discuss the possibility of using a mediator or arbitrator with your attorney. The attorney can explain the potential benefits of moving to this step and help you locate a mediator that might be appropriate for this unique set of circumstances. Those that are not willing to compromise should speak to their attorney honestly about what the outcomes of arbitration might be before agreeing to these proceedings because the conclusions of this meeting will be legally binding. This is typically used to avoid a court case with a jury that could take significantly longer to complete. There are lists of mediators often listed with the local county superior court website’s ADR department.