Mediation vs. Arbitration and the Reason the Difference is Important to You

As trial lawyers, we try to help our clients identify what type of conflict they may have and then try to help them resolve it in the manner that is the most cost effective and least emotionally draining for our clients.  While the majority of cases start in court, i.e., litigation, many end up in either mediation, arbitration, or both.  Most people haven’t experienced either of these processes and often get them confused.

Litigation is the process that people generally think of when you think of a lawsuit.  It is the courtroom drama, full of witnesses, testimony, exhibits, and evidence.  Litigation can be resolved by a jury or judge, depending on the type of litigation and whether you want to have a jury.  In Alabama, divorce cases, for example, are determined by a judge alone without a jury.  When filing a civil case, a litigant must make a decision between requesting a jury of 12 or allowing the judge to make a decision alone.  In most civil cases, a jury demand is requested.

The length of time from the filing of a complaint to a trial date varies by county but, in most counties, it takes between 12 and 24 months to have a case set for trial.  Considering some cases are not filed for 12 to 24 months after the injury occurs, this means a litigant could be looking at 2 to 4 years between the time of an injury and the time of a decision by a judge or jury.  After that decision is made, appeals can take another year. According to the latest Alabama Supreme Court statistics, the average time a case is pending on appeal is 350 days.  http://judicial.alabama.gov/docs/2014_SCStats.pdf.  This means that a case can take between 3-5 years (or longer) going through the litigation process.

Because of the time involved in making it through that process, alternative dispute resolution processes have developed through the years.  Two of the most common are mediation and arbitration.  Those words sound similar and are often confused.  The processes are completely different, however, and there are important distinctions everyone needs to know.

Arbitration is similar to a trial by a private judge.  As in the litigation process, in an arbitration each party calls witnesses, presents evidence, introduces exhibits, etc.  The difference is that it is usually done at another lawyer’s office and a lawyer or other professional acts as the arbitrator.  Most arbitration is binding arbitration, meaning that once all of the evidence is presented, the arbitrator makes a decision that all parties are bound by.  There are very limited grounds for appeal from an arbitration so, as my children’s kindergarten teacher taught them, generally “you get what you get and you don’t throw a fit.”

Mediation, on the other hand, is a voluntary process where the parties come together with a mediator (who is generally a lawyer) and try to settle their disputes.  The mediator cannot force the parties to resolve their disputes and cannot make any binding decisions regarding the dispute.  The mediation process is confidential, meaning the mediator cannot be called into court to testify about anything that happened during the mediation unless it is to testify as to the terms of the settlement agreement.  While some courts will have court ordered mediation, even in those instances, the parties cannot be forced to settle their disputes.  Thus, unlike arbitration, mediation can result in a resolution of the claims that both parties agree to but cannot result in a decision that both parties are forced to live with, like in arbitration.  If the parties cannot agree to a resolution in a mediation, they return to the dispute resolution path they were on before (litigation or arbitration).

Hundreds of years ago, people settled disputes through duels.  Today, in other countries, people often settle disputes through rioting or violence.  Thankfully, there are less violent ways to settle disputes these days.  The lawyers of Jinks, Crow & Dickson are here to help you in your time of need and to help you navigate the waters of dispute resolution.

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