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What's The Difference Between Mediation and Arbitration?

The attorneys at TheLawFirm.com are sometimes asked about the difference between mediation, arbitration and litigation.

We are usually asked this question because litigation is generally something people seek to avoid. It can be expensive, time consuming, emotionally draining and unpredictable – until a judge or jury decides the case, you can never be sure of the outcome.

Mediation is a less hostile, less confrontational format for resolving disputes. When a dispute is mediated, the parties attempt to resolve their differences between themselves rather than relying on litigation.

For these reasons arbitration and mediation are tools used by more and more lawyers. In some states mediation is mandatory before a case can go to trial while in others it is voluntary. You should also know that big companies sometimes try and take away your right to sue by ‘forcing’ you to agree to arbitration as a condition of receiving their services. Before you participate in any form of alternative dispute resolution, you should know that there are both similarities and differences between arbitration and mediation.

One similarity of arbitration and mediation are that both may be used in conjunction with litigation. That is, opposing parties may use mediation to try and negotiate, and if that fails, move forward to trial.

Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. However, it is common to employ mediation as a non-binding process and arbitration as a binding process.  If it is binding that means the arbitration replaces the trial process.

Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Those two arbitrators then select a third arbitrator at which point the dispute is presented to the three arbitrators. They then make decisions about evidence and often give written opinions.

Mediation, on the other hand, is generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion that hopefully leads to resolution of the dispute.

While most mediators are attorneys, mediators will not give legal advice during the mediation and are not supposed to make legal conclusions about the merits of either party's position.

One of the tasks of TheLawFirm.com is determining if mediation is right for your case.

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