In mediation, the goal is to reach, by agreement, a "win-win" for both sides. Some people think that this is not binding. That is not true IF the parties settle, or settle in part. The settlement will be the subject of a confirming, binding agreement. Mediation is Confidential by law. The mediator is a NEUTRAL and does not represent any side to a conflict. As a neutral the mediator does not have any decisional power. If asked for an opinion or, for example, a bracketed suggestion of settlement amount a Mediator needs to get both sides to agree to that. A Mediator, can also facilitate an agreement between the parties. It is private, confidential, and needs to be a cooperative technique.
The parties are encouraged to work towards their common goals in an early, inexpensive, and durable resolution to their problem. The settlement is made durable by a written agreement between the parties, that agrees to settle and dismiss whatever court case or other dispute pending on the issues. Sometimes the attorneys for parties stand back and allow the parties to attempt to settle.
Even in cases where parties cannot come to complete agreement, mediation can eliminate and clarify issues; and streamline the discovery process to save the parties time and money. Mediation can even help resolve disputes when even an Appeal is pending after trial and judgment. It is best to mediate a dispute when it is not at so costly a stage, however.
The parties are encouraged to work towards their common goals in an early, inexpensive, and durable resolution to their problem. The settlement is made durable by a written agreement between the parties, that agrees to settle and dismiss whatever court case or other dispute pending on the issues. Sometimes the attorneys for parties stand back and allow the parties to attempt to settle.
Even in cases where parties cannot come to complete agreement, mediation can eliminate and clarify issues; and streamline the discovery process to save the parties time and money. Mediation can even help resolve disputes when even an Appeal is pending after trial and judgment. It is best to mediate a dispute when it is not at so costly a stage, however.
Arbitration is a service most courts and many private organizations provide for resolution of disputes by a "mini trial." The two basic types are “Contractual “ and "Judicial” arbitration. In either case, the Arbitrator(s) conducts an adversarial evidentiary hearing in a trial-like with a more relaxed atmosphere than Court. The Arbitrator is acting as a substitute judge. The rules of evidence are not as strictly adhered to (this means more not less would be seen by the Arbitrator), and Arbitration is also privately conducted. Arbitration does not carry with it the same degree of privacy and confidentiality as mediation because there are no rules of confidentiality in the hearings - what is said and offered in evidence is seen and heard by all. Most of this can also be used in a later trial (such as to enforce the arbitrator award).
In Contractual arbitration means that the parties to a Contract agreed to arbitrate disputes under it. If they do, arbitration is mandatory under most states (California for one) and by Federal Law. If the parties agreed to Arbitration they must not go to file a complaint in Court. In Judicial Arbitration, a judge has ordered the parties to Arbitration, and this can be binding or not. Others are ordered by a Court for the usual reason that the amounts in controversy or the importance compared with other cases should not clog the court's calendar. The rules generally applied to arbitration require adherence to the basic rules and laws of evidence. If the Arbitrator is to be bound to use certain law, it must be stated in the Arbitration Agreement. The parties are still letting a third person decide the fate of their dispute. One will "win" and be happy, while the other will "lose." The parties may never work together again. The normal appeal is over whether the arbitration was reauired in the contract, not the contents of the award.
Which would you choose? Most legal disputes are far less expensive to resolve prior to trial. It would normally be better if they could settle before a complaint is filed in Court, but that rarely happens.
In Contractual arbitration means that the parties to a Contract agreed to arbitrate disputes under it. If they do, arbitration is mandatory under most states (California for one) and by Federal Law. If the parties agreed to Arbitration they must not go to file a complaint in Court. In Judicial Arbitration, a judge has ordered the parties to Arbitration, and this can be binding or not. Others are ordered by a Court for the usual reason that the amounts in controversy or the importance compared with other cases should not clog the court's calendar. The rules generally applied to arbitration require adherence to the basic rules and laws of evidence. If the Arbitrator is to be bound to use certain law, it must be stated in the Arbitration Agreement. The parties are still letting a third person decide the fate of their dispute. One will "win" and be happy, while the other will "lose." The parties may never work together again. The normal appeal is over whether the arbitration was reauired in the contract, not the contents of the award.
Which would you choose? Most legal disputes are far less expensive to resolve prior to trial. It would normally be better if they could settle before a complaint is filed in Court, but that rarely happens.