What's the Difference Between Litigation, Mediation and Arbitration?

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What's the Difference Between Litigation, Mediation and Arbitration?

If you have a case, you may have heard the terms litigation, mediation, and arbitration. Even though these are similar processes, there are differences between these three. Dispute resolution can be a long process but in order to get the right income, you need to follow the protocol.

Mediation is a more informal but still confidential way for parties to resolve disputes with the help of a neutral third party. The mediator isnít going to decide who is right or wrong and is trained to help parties discuss their differences and find a resolution on their own. If there is no resolution from mediation, then other steps are taken. In many cases, issues can be resolved during the mediation process.

Arbitration can be the next step after mediation fails to come up with a resolution. This is the settlement process used outside of court to help settle a dispute. Many times, it can be a voluntary process, but it can also be a legal requirement. The arbitrator is the decision maker and both parties can agree to the arbitratorís decision to have it become binding.

Litigation is reserved for more complex and severe dispute resolution cases, where a judge or jury decides the outcome. Litigation and arbitration are similar but if you arenít satisfied with the outcome of the litigation then you are able to appeal. With arbitration, you arenít able to appeal the arbitratorís decision.

Mediation Versus Arbitration
The main difference between arbitration and mediation is the process used to resolve the conflict. Arbitration is a binding process that replaces the full trial phase with many people, usually three, chosen to serve as judges in the case. Arbitration is conducted using a panel of arbiters who take on the role of a judge and make decisions about the evidence. They give written opinions, which can be non-binding or binding. Arbitration does sometimes only use one arbitrator, but the most common procedure is for each side to choose an arbitrator. Those two arbitrators then select a third one. The dispute is then presented to the three arbitrators. Decisions are made by majority vote. Both mediation and arbitration are similar in that they are both an alternative to traditional litigation, but sometimes they are used in conjunction with litigation. While mediation is often not binding, both can be binding, and both use neutral third parties to oversee the process.

Mediation in Modern Litigation
Many people want to avoid litigation since itís time consuming, unpredictable, emotionally draining, and expensive. Until the judge or jury decides your case, you arenít sure of the outcome. Since litigation is inefficient for many people, alternative dispute resolutions such as mediation and arbitration have become more popular. Mediation has since become an important part of the litigation process. Almost all lawsuits are mediated before a court will even allow them to be put on a trial calendar since mediation can be an effective way to reduce trials and court dockets. Itís a much more cost effective and efficient option when compared to litigation.

Mediation is a popular choice because both parties come together in an environment where they can confidentially and freely present their defense in front of a third party. Mediation helps put issues in perspective to limit them. Participants can feel better since they have the opportunity to get things off their chest and may even benefit from hearing points of view from the other party. The relaxed atmosphere, along with neutrality, may eliminate the need to want to continue hostile litigation since both parties will have their issues seen in a fair way.

Mediation can be used for almost any kind of dispute and there isnít a need to wait until the judge requires mediation. Choosing mediation before a lawsuit is also becoming more popular as a way of resolving disputes before they get to litigation. Itís much cheaper and faster when compared to litigation. Most certified mediators are in fact attorneys, but mediators canít give legal advice during the process and arenít supposed to make any legal conclusions about the position of either party. When parties come to an eventual agreement, they can put the agreement in writing and then sign it so that itís binding.

What Is a Pre-Mediation Contract?
If you want to begin with mediating a dispute as opposed to going straight to litigation, then you and the other party should enter into a pre-mediation contract. The contract is simple and should express that mediation is confidential and non-binding. Parties should agree on the length of the mediation. Most are scheduled for either a full day or a half day. Parties should agree to mediation until either one determines that it is no longer worth it to continue. If an agreement canít be reached, then the mediation will result in an impasse. Even if the case does result in an impasse, there are also different ways to work toward an agreement with the mediator.

Even though mediation, arbitration, and litigation are all ways to solve disputes, starting from the beginning with mediation can save a lot of trouble.

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