Alternatives to Court – Mediation and Arbitration
Mediation and arbitration are sometimes referred to as alternative dispute resolution. As the courts become more crowded and litigation becomes more expensive, more people are choosing to resolve their legal disputes outside of the courthouse. Often, lawyers who successfully help clients resolve disputes through mediation or arbitration have additional skills, experience, and knowledge beyond what is required for courtroom centered litigation.
Why Not Just Go to Court?
Alternative dispute resolution provides many benefits over battling it out in court. Some of the biggest advantages include; lower costs, faster resolution, greater flexibility in crafting solutions, Subject matter expertise, greater privacy.
When a case goes to court, you are subject to the court’s timeline and the legal limits of a judge’s authority. Often civil cases take months, or even years to go through the entire process from filing a lawsuit to finishing a trial and getting a verdict. Litigation is expensive. A court case can typically only end a few different ways. Almost everything that happens in a court case is a matter of public record.
Often individuals and businesses are better served by seeking different ways to resolve a business dispute.
What You Need to Know About Mediation
The court can either order mediation or it can be entered into by the agreement of the disputing parties. A mediator oversees the mediation. A mediator is often a specially trained judge or lawyer with years of litigation experience.
A mediator is a neutral third-party. They do not have a vested interest in the case. The mediator works to try and help the parties negotiate a settlement. The mediator cannot force an agreement. Typically, if mediation fails the two sides are free to pursue litigation through the courts.
While every mediator works differently, most require both sides to submit briefs outlining their positions and goals before the mediation. The mediation is often held at the offices of one of the lawyers or at the mediator’s own office. Each side is usually sent to a private room and the mediator travels between the two rooms presenting offers and counteroffers.
Mediators often help both sides see the weaknesses in their case and explain what the risks of going to trial might be.
If the two sides come to an agreement, the mediator, or one of the lawyers for the parties, will draft an agreement. This agreement is a contract between the two sides.
A mediation agreement, in most circumstances, can remain confidential and kept out of the public record. The parties are free to be as creative as they want in crafting a solution that satisfies both sides.
What You Need to Know About Arbitration
Arbitration is similar to the court system with a few critical differences. An arbitration is presided over by an arbitrator. The arbitrator is like a judge. He or she will make rulings about what kind of evidence can be presented and then will issue a final decision.
However, arbitration is much more efficient than the court system. Typically, an arbitrator is a subject-matter expert in the industry or type of dispute. There is no jury, and the process of filing briefs and making arguments is much shorter than in court.
Arbitrations often happen with parties in completely different parts of the country. Both sides may “appear” via a conference call.
There are two different types of arbitration, binding and nonbinding. Binding arbitration means that beforehand the parties agree to abide by whatever decision the arbitrator makes.
Nonbinding arbitration results in a recommendation that the parties can sign off on in the form of a contract or by making the decision binding after the fact.
When the parties agree to arbitration they also usually agree to a set of rules that the arbitrator will follow. These rules deal with what kind of evidence is allowed, timelines, and any rights to appeal.
Depending on the circumstances, the proceedings of the arbitration may be kept confidential and out of the public record.