Alternative Dispute Resolution

Disclaimer

Below you will find some general information about alternative dispute resolution. This page provides a basic, general discussion of two forms of alternative dispute resolution. There are books written about various facets of the subject, and this is not an attempt at writing one.

This general information may not apply to you, and it is not intended as a legal opinion or legal advice.

Alternative Dispute Resolution

Mediation and arbitration are forms of alternative dispute resolution, i.e. alternatives to litigation in court and trial. They are important processes, and everyone should consider their use. Sometimes they are superior to litigation in court and sometimes they are not. Some contracts require a meeting in mediation prior to filing a lawsuit. Some contracts call for the use of arbitration in lieu of the court system. This may have the unexpected consequence of unfairly tilting the playing field in that arbitration can be more costly than litigation.

Mediation is a flexible, confidential process where the parties can meet with a neutral who helps facilitate communication. The parties have a great deal of control in crafting a resolution that suits their needs. It may encompass factors far beyond what a court may consider or do. The mediation process is voluntary in the sense that the parties are free to reach an agreement or not. The neutral does not determine or decide the case; instead the parties make the decision. The neutral may provide guidance, feedback, evaluation, etc. in the process of helping the parties reach an agreement.

Arbitration is more similar to a court case. One or more neutral arbitrators hear the parties evidence and make a decision as to the outcome. Typically arbitrations are more streamlined than court litigation. They may be less formal than court. There may be limitations on pre-hearing procedures such as discovery or other procedures for resolving a case. Private arbitration is binding in that the award may be turned into an enforceable judgment, just as if the whole case had been heard in court. A court will typically enforce an agreement requiring arbitration.