The best approach to winning cases and settling disputes is not always going to court. There are instances where the best approach is to avoid court through Alternative Dispute Resolution (ADR), which can avoid long delays and high costs. You can either mediate or arbitrate. But, contrary to popular belief, the two most important ADR methods, mediation and arbitration, are not synonymous.
With mediation, the parties have greater control over the outcome of the dispute. In this process, an independent and impartial person (the “mediator”) does not act as a judge. Instead, the mediator acts as a “facilitator,” asking each of the parties about possible solutions while searching and finding points of agreement moving each of the parties toward a mutually agreeable solution or consensus. The parties actively participate in the decision-making through the mediation process. In other words, this is a resolution based on agreement between/among the parties under the guidance of the mediator.
Mediation is one of the most popular Alternative Dispute Resolution methods used. It is an interactive, structured and dynamic process which involves a neutral third party, the mediator. The parties are encouraged to participate in the process. The main aim of this process is to settle the dispute while considering the interests, rights and needs of all parties. Therefore, it is very much a party-centered process. The neutral third person will mediate the matter by facilitating communication between the parties, and attempting to resolve as many contested issues as possible.
Some are concerned about the length of the process. How long the process takes depends upon the willingness and cooperation of the parties. If they actively participate and are willing to find ways to achieve a win-win situation, the mediation may not take long. Since it is a party-centered process, the amount of time expended and the success or failure are controlled by the parties, not the mediator. One thing is certain; it will take less time than going to court.
Although mediation is a legal process, the third-party mediator or facilitator may not be a lawyer but a person knowledgeable in the subject area of the dispute, such as a contractor in a dispute about construction of an addition to a home. In all cases, to successfully mediate and solve the dispute, the third person must be neutral.
How does mediation work in divorce, you might ask? In the mediation process, you and your spouse hire a neutral third party as mediator. With the help of this mediator, you and your spouse discuss and attempt to resolve all contested issues concerning your divorce. In some instances, such as court-ordered mediation of custody matters, attorneys would not be present during mediation; however, attorneys will be present in most mediations.
Mediation vs. Arbitration
The public often thinks of mediation and arbitration as the same thing. They are not however. As explained above, the mediator acts as a facilitator and not as a judge.
Arbitration, on the other hand, involves a third-party decision-maker who is the arbitrator. The arbitrator will act like a judge as the parties present their different positions. The outcome of the dispute will be decided by the arbitrator and the decision of the arbitrator will be final in most situations. For a more complete discussion on arbitration and how it works, see the blog “What is Arbitration?”
The bottom line is this: if you think compromise is realistic possibility, you should explore mediation before pursuing court action. Give us a call if you’re wondering if mediation is possible for you. We have plenty of experience to help you navigate the legal system.