Mediation Comparison to Arbitration and Litigation

Mediation Comparison to Arbitration and Litigation

1. Arbitrator Qualifications (1) Minimum of 10 years of senior-level business or professional experience in legal practice or similar field (2) Bachelor’s degree and professional a license in the field of ability. Bachelor's degree programs in mediation and conflict or dispute resolution are available at some universities. These programs typically include courses in interpersonal communication, psychology, and negotiation strategies. (3) Must have no bias or prejudice towards any party or the matter involved and can apply standard principles to the matter at hand. (4) Training or experience in arbitration and forms of dispute resolution (5) The arbitrator must also be capable of managing the hearing and process as well as making an impartial evaluation of evidence.

   • Arbitration - Arbitration implies a procedure in which an independent third party studies the dispute in detail, listens the parties involved, obtains relevant information and then takes a decision which is considered final and binding on the parties. It is a formal meeting, which begins as a claim and ultimately the dispute is submitted to one or panel of arbitrators, who makes the judgment after taking into account all facts and evidences relating to the dispute.
     • Disadvantages
       • The arbitration decision is final. There is no formal appeals process available. Even if one party feels that the outcome was unfair, unjust, or biased, they cannot appeal it.
       • Parties can utilize any information that is brought to them because arbitration is not evidence-based, you entrust the experience of the arbitrator to make the a right legal decision.
       • There are no set standards for arbitration, making it difficult to find consistency. It is possible that an arbitrator can be biased
     • Advantages
       • Cost-effective and speedier resolution of disputes
       • Both parties agree to the arbitrator, resulting in a fair outcome, especially when compared to a traditional legal trial in which neither party has control over the jury or judge selection. Parties can also agree to choose an arbitrator that has experience in their specific area of legal dispute.
       • The outcome can preserve future relationships and wider the range of unconnected issues that can be considered Confidentiality (parties can waive)

2. Mediator Qualifications (1) Good moral character and be able to ease conversations without taking sides. (2) Must be licensed lawyers in good standing with their state bar. Candidates must have a J.D. degree from an accredited law school; have passed the state's bar exam; and keep up with attorney fees and state taxes (3) Most states require certified court mediators to have undergone mediation training. (4) Once a a person has fulfilled a state's requirements to be certified as a mediator, he must apply for certification. Candidates may also, be needed to sign a mediation agreement. Some courts also require that mediators take a refresher continuing education course every year to keep their certification. (5) Some states allow relevant work experience to serve as a substitute for another mediation requirement.

   • Mediation - Mediation refers to a process of resolving disputes wherein an independent third party, assist the parties involved in arriving at solution, agreeable to all.
     • Disadvantages
       • Can increase the cost of resolving the dispute if ADR process unsuccessful.
       • Parties can hide behind a weak case and withhold information or documents
       • Loss of strategic use of interim orders and procedural remedies
     • Advantages
       • Faster, cheaper and more satisfying to the parties than litigation
       • Speedier resolution of disputes. It is also a non-binding process generally conducted with a single mediator who does not judge the case but facilitates discussion and eventual resolution of the dispute.
       • The process is private and confidential consensual and non-adversarial

3. Litigation

   • Disadvantages
     • With Litigation court fees and application fees can be very costly
     • Many court cases can be long and time consuming
     • Solution imposed on parties by judge can lead to client dissatisfaction.
   • Advantages
     • Obtain court precedent
     • Open system of justice meaning it becomes public
     • Parties can employ procedural rules and interim remedies