What is the Difference between a Deposition, Mediation and Arbitration?
What is a Deposition?A deposition is sworn testimony provided in a question-and-answer format. A court reporter is present to transcribe everything that is said (the testimony) and then compiles the testimony into the "record" to be used later at trial. If any testimony differs later at trial, such difference can be pointed out to the fact-finder, and may damage the credibility of the witness.
Depositions are generally taken of all parties to a lawsuit, as well as those of significant fact-witnesses.
There are also perpetuation depositions, which consist of testimony taken from a witness that will be unavailable at trial. For example, if it is contemplated that a witness may die before trial, then the witness' testimony would be perpetuated, and the transcript read at trial, in lieu of the witness' personal appearance.
What is Mediation?Mediation is a settlement and negotiation process in which the parties to a dispute agree to have a neutral third-party act as a facilitator. The mediator has no authority to decide any issues in the case, nor does the mediator have the ability to unilaterally bind the parties to an agreement.
Mediation is usually voluntary, but sometimes can be required under a contract between the parties. In the latter instance, while participation in a mediation may be mandatory, forced settlement of the dispute is never required.
A mediator does not act as an advocate for any party to a mediation, but simply acts an advocate for the process of alternative dispute resolution. Generally, if the parties have already agreed to mediate their dispute, it is a good indication of the likelihood that the dispute will be resolved without the need for further litigation. It is estimated that between 95% and 98% of all cases mediated result in some form of settlement.
What is Arbitration?Arbitration is the process by which parties have their disputes resolved outside of the traditional courts of law. The arbitration hearing is generally held before one to three arbitrators (fact-finders), and their decision may be binding or non-binding. Binding arbitration is usually a product of the parties contractual obligations, whereas non-binding arbitration is generally a result of the case being mandated to arbitration first.
In Oregon, all cases which have an amount in controversy which is under $50,000 are assigned to court-mandated arbitration, and may not be tried to a jury or court until first proceeding with the arbitration process. It is estimated that 95% of all court-mandated arbitration cases end in resolution at the arbitration level. However, since the arbitration program is non-binding, and participation is not mandatory, on occasion cases are appealed to the circuit court for trial.