Mediation and Arbitration are making the headlines more and more these days. Many times it’s regarding a professional sports team, a union, or another group that is in dispute and requires assistance in coming to a resolution.
Mediation and Arbitration are commonly-used methods of Alternative Dispute Resolution (ADR) which refers to resolving disputes in ways other than going to court.
We regularly receive calls from families who are separating or divorcing and are unsure about what these Alternative Dispute Resolution processes can offer. Hopefully, I can shed some light on this.
In both mediation and arbitration, people choose their own arbitrator or mediator and ensure this person has a background and understanding that is suitable for their dispute.
Each process is less formal and takes place more quickly than going to court. In each case, parties can usually have immediate access to the mediator or arbitrator if needed.
Also, a mediation or arbitration clause can be included in an agreement or contract in the case of a future dispute.
However, there are some very distinct differences between mediation and arbitration.
A mediator is impartial, treating all parties equally and fairly. They can guide and assist people who are in a dispute to communicate clearly, to be heard by one another and to help them resolve their differences.
The discussions in mediation are confidential and the goal is for everyone to have their needs met.
The mediator doesn’t take sides or make any decisions for the people involved – the parties retain control of the outcome.
The agreement reached in mediation is written up by the mediator and this agreement can be legalized through the courts or a lawyer if the parties agree.
It is recommended that that people participating in mediation get legal advice so that they know their rights and responsibilities.
An arbitrator is a neutral third party who listens to both sides of a dispute. They will then make decisions for the parties based on evidence and law.
Decisions made are often legally binding and the outcome can be enforced like a court order.
This process can be considered to be a “private court” as there are no public filings or hearings made.
Many times, people who attend arbitration do so because of the terms of a contract.
Arbitration is governed by laws and arbitrators do not have jurisdiction in the areas of divorce, custody, child support, criminal and will and estates.
Mediation and arbitration have some similarities and differences. What makes them stand apart is who makes the decisions and how their agreements are made legal.
In mediation, the parties make decisions based open and honest discussions. Agreements reached in mediation can be used as the basis of a legal agreement or court order.
In arbitration, a neutral third party or arbitrator makes decisions based on evidence and law and these decisions are usually binding.
Deciding which process to use really depends on each individual situation and whether there is a previous contact or agreement in place which states how disputes are to be resolved.
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