Most people have an idea of what litigation is, and sensibly want to avoid being involved in a lawsuit. Many people are also aware that alternatives to litigation, such as mediation and arbitration are available, but few likely know how these alternatives differ from litigation or from each other.
Mediation and arbitration are types of Alternative Dispute Resolution (“ADR”) processes which people use to settle disputes rather than litigating. The main difference between these two types of ADR is the role taken on by the mediators and arbitrators.
The Role of a Mediator
Mediation is an informal process where the parties, not the mediator, agree on a resolution to the dispute where possible. The mediator assists the parties as a neutral facilitator by ensuring everyone has an opportunity to be heard, guiding the parties in the generation of ideas for resolving the dispute, and potentially helping the parties to finalize an agreed upon resolution.
This process is often used to assist in resolving work place conflict or conflict related to separation and divorce. People who want to preserve their relationships or are still on somewhat friendly terms should consider mediation as an option for resolving disputes.
The Role of an Arbitrator
Arbitration is a process where parties agree to have a neutral third party decide the outcome of their dispute. An arbitrator is similar to a judge in that the arbitrator hears witness testimony, considers and evaluates evidence, and ultimately comes to a decision. For a more detailed description of the arbitration process, read What is Arbitration?
People often use the arbitration process to resolve contractual disputes as it is less costly and time consuming than court.
How to Choose?
If you have a dispute and think it may be resolved without having to go to court, you may contact a lawyer or someone with expertise in ADR processes to advise you on the best suited process for you and to direct you to a skilled mediator or arbitrator. Keep in mind that parties in a dispute may first attempt to mediate and then move on to arbitration if mediation is unsuccessful.