Mediation is a non-binding voluntary settlement process in which a neutral third party (the mediator) facilitates communication and negotiation between the parties. Mediation can preserve relationships and can help build a positive framework for future interactions based upon mutual interest so similar problems can be resolved in the future. Mediation poses no risk since no one can force a decision on them. A mediator has no authority to force a settlement on the parties. Instead the mediator helps the parties try to reach a mutually agreeable settlement. A mediator will not disclose any information to the opposing side without consent. If a settlement cannot be reached, the parties are free to pursue other legal remedies.
At the mediation the parties gather in a joint session with the mediator. The parties have the opportunity to give a short and informal summary of their case. This allows the party and the mediator an opportunity to gain an understanding of each side’s position.
The parties then separate into caucuses. Once the parties are separated, the mediator typically moves back and forth several times between the caucuses. The mediator gains knowledge or facts that can help facilitate a settlement. The mediator can explore many avenues to a solution that may not have been considered without the private caucuses. The mediator is in a better position to understand the conflict and each party’s position, and to assist the parties to be more creative in resolving the conflict.
Arbitration is a form of alternative dispute resolution whereby a dispute between two or more parties is resolved by an impartial person(s), known as an arbitrator. It is designed to be a prompt, less formal, and inexpensive way of resolving disputes.
Parties have a full and equal opportunity at the hearing to present any material and relevant evidence and the hearing is private and confidential to the extent allowed by law. The arbitrator may require witnesses to testify under oath and may require parties to submit documents or answer questions prior to the hearing. Arbitration hearings are conducted similar to court trials, except arbitration hearings are less formal. At the opening of the hearing, the arbitrator may ask the parties to clarify the issues to be decided. Each party shall make an opening statement, present their evidence, question and cross-examine witnesses and make closing statements. Conformity to legal rules of evidence is not required. Typically, the parties agree to waive certain rules of evidence and to proceed less formally. This is common and acceptable when there is agreement between the parties. The arbitrator has authority to determine all issues and matters in controversy in the dispute. There are certain rules and laws that control the conduct of an arbitration proceeding and an arbitration award is final and binding, subject to review by a court only on a very limited basis.
• Tensions, emotions, or transaction costs are running high
• Communication between the parties has broken down
• Multiple issues have to be resolved
• The parties want or need to maintain some ongoing relationship
• There is no need to establish precedent and there is no single “right” solution
• Take some time to prepare before sitting down at the table
• Understand their own case and be prepared to communicate with neutrals and other participants
• Briefly assess their interests, wants, needs, and expectations
• Assess adversaries’ interests and expectations
Mediation and arbitration have proven themselves to sometimes be a more fulfilling process than litigation. In litigation there is always a losing party, where in mediation and arbitration, the parties have a chance to have their opinions voiced throughout the entire dispute process which leaves a much higher chance of both parties walking away satisfied.
Mediation and arbitration are also a lot more affordable than the litigation process. The litigation process requires a lot of formalities, which also costs a lot of money and are not required in the arbitration and mediation processes. Mediation does not require excessive use of an attorney, unlike litigation, which also helps with the bill.
One of the primary advantages of having an arbitrator or mediator is the ability to choose a decision maker with expertise that mirrors the nature of the dispute. Before choosing an arbitrator or mediator you must do some groundwork to make sure you choose the best neutral for your case. Be sure to check out our neutrals and their areas of competence to find the best fit for you.
Mediation works because it promotes a quick, fair settlement and lowers overall costs. The dynamics of mediation encourage this result in several ways. Mediation brings the parties together face to face. It educates the parties, and helps all sides come to a realistic understanding of the strengths and weaknesses of their positions. It can bring about serious settlement negotiations early, often before suit is filed. Its flexible nature allows exploration of all possible avenues to reach settlement. By promoting early settlement, mediation helps the parties avoid the cost of extended litigation. Mediation allows the parties to control the outcome, rather than depending on another person(s) deciding their case for them.