Mediation, Arbitration or Litigation?

Conflict resolution. It may be a big part of your life even if you’re not a lawyer. Mediation training through the local bar association certainly helped my mothering skills, but I digress. Often conflicts are settled directly between the parties. However, assuming the parties cannot settle on an agreement between themselves, there are three main methods to resolve the conflict: mediation, arbitration and litigation.

MEDIATION

Mediation involves all the parties coming together in one place to come to an agreement between themselves. The parties choose a mediator who guides the parties toward their resolution, but the mediator does not decide the outcome of the conflict. If there is a high amount of tension between the parties, the mediator may set ground rules for how the parties communicate (such as only to the mediator and not between themselves) or the mediator may talk to the parties in separate rooms. If there is less tension between the parties, they may all meet in one room and may even communicate between themselves.

The focus of mediation is on the parties reaching an agreement themselves. It is the least formal of the conflict resolution procedures and is completely voluntary and completely private.

ARBITRATION

Arbitration involves an arbitrator who decides the conflict. However, the parties to the conflict choose the arbitrator and set the ground rules for the arbitration themselves. This allows the parties to be as formal or informal as is warranted by the nature of the conflict and the wishes of the parties.

Arbitration can be binding or non-binding, meaning that as one of the ground rules they agree on before the actual arbitration, the parties can agree to abide by the arbitrator’s decision or to allow the parties to resort to litigation after they receive the arbitrator’s decision.

Arbitration can be less formal than litigation, more formal than mediation, depending on how the parties structure the proceeding. It is completely voluntary, although many contracts include an agreement to arbitrate conflicts arising from the contract. Like mediation, it is also private.

LITIGATION

Litigation is the lawsuit. One party brings his case against another party in court and a judge decides all the issues that the parties cannot agree on. It is the most formal and restrictive of the three methods because the parties have little control over the process or the outcome. The process is governed by the civil procedure laws of that jurisdiction, and the parties have virtually no choice about which judge they are assigned to. Except in limited instances, litigation files and hearings are open to the public.

These three methods are not exclusive: one case can involve all three methods plus a settlement agreement between the parties. Conflicts are inevitable. Make sure you choose the resolution method or methods that best fit your conflict.

 

Originally published by Susan on January 20, 2015.