There are times that traditional litigation may not be the best alternative for all parties. The following chart explores why you may or may not want to mediate or arbitrate.
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Factors Favoring Mediation |
Factors Opposing Mediation |
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No legal remedy |
Wanting a test case |
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Preserving a relationship |
Wanting a jackpot |
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Maintaining privacy |
Party refuses, is absent or incompetent |
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Avoiding delays |
Need court order to prevent harm |
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Avoiding high fees |
Serious crime |
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Avoiding legal precedent |
Better off in small claims court |
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Unable to negotiate |
Real court victory is assured |
In mediation, two or more people involved in a dispute come together to try to find a fair and workable solution to their problem. They do so with the help of a mediator, a neutral third person, trained in cooperative conflict resolution techniques. Civil mediation differs slightly from divorce & family mediation. To learn more about divorce & family mediation, click here.
In arbitration, a neutral third party, called the arbitrator or arbiter conducts a hearing between the disputants and then renders a final decision, called an award. The arbitration may be either binding or nonbinding. The award in a binding arbitration is legally enforceable and both parties agree to accept same. The award in a nonbinding arbitration does not necessarily have to be accepted by both parties, but has persuasive value.
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Process |
Mediation |
Arbitration |
Litigation |
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Who Decides? |
Parties |
Arbitrator |
Judge |
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Who controls? |
Parties |
Arbitrators/attys |
Court/Attys |
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Procedure |
Informal — a few rules are designed to protect confidentiality and let everyone speak and be heard |
Agreed rules of procedure are followed |
Formal and complicated rules abound |
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Time needed to schedule hearing |
A few weeks |
A few months |
Two years or more |
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Cost to party |
Low to Moderate |
Moderate |
Substantial |
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Rules of evidence |
None |
Established but reasonably informal |
Complex |
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Publicity |
Private |
Usually private |
Public |
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Relations of parties |
Cooperative effort may develop |
Antagonistic |
Antagonistic |
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Focus |
Future |
Past |
Past |
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Method of negotiation |
Compromise |
Hard Bargaining |
Hard Bargaining |
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Communication |
Usually improved |
Blocked |
Blocked |
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Result |
If successful, Win/Win |
Win/Lose |
Win/Lose |
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Compliance |
Generally honored |
Often resisted or appealed |
Often resisted or appealed |
Parties to a successful mediation are able to:
Kathleen G. Johnson
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