What is the difference between mediation, arbitration and litigation?
Lawyers are often asked about the differences between mediation, arbitration, and litigation.
In litigation, you are undergoing a judicial process. You’re bound by the rules of court, and these rules are lengthy and detailed. This is a binding form of dispute resolution. The court follows the law closely and the outcome is handed down by the judge or jury with little input from the client.
Arbitration is similar to litigation in the sense that it is also a binding form of dispute resolution. The key difference between the two is that arbitrators, while they must follow the law, have more leeway to make a decision that appeases both sides. Think of arbitration as hiring a private judge for your case. You can choose your own rules, choose your own time frame, and it’ll typically be a quicker, less expensive process. And if at the end, one party decides not to follow the arbitrator’s ruling, the ruling can be enforced by a judge.
Mediation is where the client has the most control over the outcome. A mediator sits in the middle as a neutral party and tries to find commonality between both parties. It’s a difficult job. The mediator has to be seen to be neutral by both parties or one will think you’re siding with the other.
In the mediation process, both parties still have lawyers. I have my client and there’s another lawyer acting for the other side. Lawyers sit in the same room and give legal advice. They talk about the law together so both parties can see where there may be differences. And there frequently can be differences because the law is not always clear. Once the parties see where those differences lie, they can usually find agreement among themselves. Sometimes parties will follow a mediation arbitration model where they start out with mediation, and if that fails, they shift into arbitration mode.
Each form of dispute resolution offers the client varying degrees of control over the outcome. Which one is best for the parties involved depends on the specifics of the case and should be handled on an individual basis.