Alternative dispute resolution is a general term referring to methods of resolving legal disputes outside the adversarial process. Two important forms of alternative dispute resolution are arbitration and mediation. In this and our next post, we’ll take a brief look at the differences between these two approaches to resolving disputes.
Arbitration is an alternative dispute resolution process which, in many ways, is similar to a court trial, though arbitration is less formal and there is no jury. Rather, arbitration involves either a single arbitrator or a panel of three arbitrators which act as a neutral party or body that hears the case presented by both sides of the dispute and makes a decision based on the evidence presented. The procedures used in arbitration, being less formal, are less time-consuming and less expensive as well.
Mediation is typically very different from arbitration, though it does depend on the style of mediation being used. As we’ve noted in a previous post, the exact process used depends on the mediator the parties are working with and the particular style of mediation used. Styles of mediation which are more facilitative and transformative in nature are not going to mimic litigation very closely, though evaluative-style mediation can involve legal considerations.
Evaluative mediation involves a consideration of the strengths and weaknesses of the parties’ claims in terms of legal merit. Evaluative mediation isn’t always going to be the best approach for mediation in every case, but it can help give parties a better idea of what they are facing if mediation talks break down and it becomes necessary to resolve the dispute in the court system.