Mediation is a process wherein both sides, plaintiff and defendant, appear before a neutral third party, such as an experienced attorney uninvolved in the case, or a retired Judge. The parties discuss the issues in dispute and try to come to an agreement to resolve the matter. The Mediator does not reach a decision or come to a conclusion, but rather, the Mediator tries to get the parties to reach a resolution.
How Does Mediation Work?
A mediator is a trained third party who is often a retired judge or lawyer. If not one of the foregoing, the Mediator has usually undergone some type of formal training which helps her facilitate meaningful discussions. The mediator does not give opinions or help make decisions.
Additionally, mediation is confidential and informal, and the cost is borne equally by both sides. In a personal injury case, mediation is usually of a standard structure. Typically it begins with each party speaking with the mediator in the presence of the other party. Each party gets a chance to tell their side of the story while the other side hears the other party out.
The mediator then moves from one party to the next, gathering information and sharing it with the other side. The mediator may speak with your attorney privately so they can provide an honest assessment of the case. The mediator will not make decisions but bring structure to a process that should be meaningful.
An arbitrator is an impartial third party, who has no other interest in the case. The role of an arbitrator is similar to that of a judge—hearing and reviewing evidence. Arbitrators are usually experienced lawyers or retired judges.
The Arbitration Process
Arbitration is a process where an arbitrator or panel of many, hear testimony and are presented with evidence and then make a final binding decision about a dispute between parties. The litigants appearing at arbitration should be represented by a lawyer as they would be in court at a trial. The conduction of paper discovery and depositions will be done before trial.
After the proceeding, the arbitrator will review the evidence and decide who wins the case and determines how much will be awarded in damages. The arbitrator will usually put her decision in writing and send it to both parties.
If it is binding arbitration, then the arbitrator's decision will be final and a judgment will be entered against the losing party. Generally, there is no right to appeal from the arbitrator's award in binding arbitration, unless it can be shown that the arbitrator was bias or something very extreme.
Both Mediation and Arbitration are common forums for litigants to resolve disputes that are an alternative to traditional courtroom litigation.