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Using Mediation and Arbitration as an Alternative to Dispute Resolution

Written by: James Peter Lingl

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Posted almost 3 years ago. Applies to California, 3 helpful votes, 1 comment

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Arbitration

Arbitration is similar to a court trial, in which a neutral third party is selected to hear evidence presented by the disputing parties after which the arbitrator makes a decision or enters an award, indicating who wins and who loses; who was right and who was wrong. The advantages of arbitration include speed [arbitration can be scheduled and held in within weeks or months instead of the years it sometimes takes to get a matter to ‘trial’ in the courts], economy [much of the expensive ‘discovery’ which precedes lawsuits is eliminated] and finality [most arbitration awards are not subject to appeal or judicial review of any kind.]

Mediation

Mediation can best be described as “facilitated negotiation”, in which a skilled neutral third party is selected to assist the parties in finding a resolution to their dispute which is acceptable to all sides. Mediators have specialized training which allows them to foster discussion and problem solving in a safe environment while generally not taking sides in the matter under discussion. However mediation styles differ widely among mediators. Some are ‘facilitative’, in that they take little or no role in suggesting resolutions but instead allow the parties to grope for those solutions themselves. Other mediators are ‘evaluative’, which means that they will use their persuasive powers in order to encourage understanding of the other side’s positions and will suggest options or alternatives by which the dispute can be ended.