Before 2 opposing parties were to meet in a courtroom, the same 2 parties might agree to take part in either arbitration or a mediation session. How are those 2 procedures alike, and how do they differ?
Similarities of arbitration and mediation
• Both are a type of alternative dispute resolution (ADR).
• Both take place outside of a courtroom, often in a private office or an area reserved for members of the public.
• Both procedures allow the participants to enjoy a larger amount of confidentiality.
• Nothing that has been said by anyone taking part in either procedure gets placed in a public record.
Prior to the start of either procedure, the disputing parties can set their own ground rules. Those rules could determine the types of evidence allowed, the kinds of experts that might be consulted, and the basis for the concepts that would become the foundation of a final agreement.
How mediation differs from arbitration
Of the 2 procedures, mediation is less formal.
• The mediator functions as a neutral party.
• The mediator cannot impose a decision on the mediating parties.
• Skilled mediators relish the chance to help the disputing parties arrive at some type of agreement.
• Arbitration proceeds according to a set of formal rules.
• Some arbitrators have had legal training.
• An arbitrator should have expertise in the specific area that is the subject of the dispute.
• Unlike mediators, arbitrators can make decisions and determinations.
• The arbitrator’s decision becomes binding.
What happens when each procedure has finished?
Following arbitration’s conclusion, one party might be dissatisfied with the decision/determination. Unfortunately, that same party has no legal recourse for seeking a change to the same decision/determination.Ideally, following mediation’s conclusion, the disputing parties have arrived at an agreement. If that is not the case, then the same 2 parties have to face each other in court.
Possible reasons for choosing either procedure
• If a lawyer’s clients were seeking confidentiality, either would be acceptable.
• If a client felt more comfortable with formalities, then arbitration would seem to be the better choice.
• If a client sought a decision from someone with a specific level of expertise, then that client’s preference would probably be this: take part in a procedure with an arbitrator.
Sometimes, an Injury Lawyer in Kitchener knows that a retired judge serves as a mediator. Sometimes a law student gets the chance to take on a mediator’s role. For that reason, mediation can, at times, prove less expensive than the alternative (arbitration).
Clients that wanted the fastest procedure should know that mediation could be as short as a couple hours. It would never extend for more than 2 days. Yet if it failed to end with an agreement, then a discovery session would have to be scheduled.