Arbitration and mediation are two common forms of alternative dispute resolution. However, they differ from each other in significant ways. However, both have the possibility of ending a legal dispute while saving time, money and frustration by not having to air their concerns in a public forum in a courtroom.

Mediation

Mediation is a non-adversarial alternative to litigation. It has been accepted as an effective way of resolving disputes in civil cases, including family law cases. This method is particularly effective in family law cases because it allows the parties to reach their own decisions about their families. They are often in a better position to know what is best for their children and family than judges who have never interacted with them before.

In some cases, mediation is mandatory. For example, California makes mediation mandatory for family law cases that deal with child custody or visitation matters. The parties are required to participate in mediation in good faith before they can proceed with a hearing in the case. Mediation is court-ordered in these cases unless domestic violence is involved.

MEDIATORS

Mediators are often individuals who have expertise in family law matters, such as family lawyers, former family court judges, teachers or social workers. They usually have an educational background in counseling or social work. The parties can agree which mediator they want to help resolve their dispute based on a profile provided on the mediation sheet.

PROCESS OF MEDIATION

The parties may be asked to prepare statements or a brief before attending mediation in which they lay out important facts and goals for mediation. They may help explain where their settlement negotiations dropped off and may explain why certain arrangements are not ideal. At the beginning of mediation, the mediator may establish the ground rules for the course of mediation. Depending on his or her style and the dynamics of the parties, the parties may talk to the mediator together or the mediator may put the parties in different rooms and shuttle back and forth between them.

The mediator talks to each party in a neutral manner. He or she may communicate messages and potential settlement provisions between the parties while also advocating for better communication between the parties. He or she helps the parties align their interests and brainstorm possible solutions. If the parties reach an agreement, this agreement is often put into a written form and serves as the basis for the eventual court order. If the parties do not reach an agreement during mediation, this process may help them establish a collaborative procedure with each other and the parties may later settle. In some California counties a mediator may make recommendations to the judge about what may work for the parties. Some counties do not even allow the mediator to make such recommendations. In any event, mediation is confidential and neither the mediator nor the parties can comment about things discussed during this process.

While the parties are generally the child’s parents, in child custody mediation, other individuals may be involved, such as social workers, lawyers, teachers, counselors or other participants that the court or parties invite. Mediation may be completed in one day or longer, depending on the needs of the family.

ROLE OF THE MEDIATOR

The mediator is a third-party neutral who helps guide the parties to a settlement of their case. He or she does not represent either party in the process. Also, he or she is not a decision maker. He or she cannot impose an order on the parties. This is not his or her role, and any agreement between the parties is completely voluntary.

The mediator may have a number of different roles during mediation. He or she can help the parties devise a parenting plan that takes the child’s best interests into account. Such a plan usually provides greater ability for the child to maintain frequent and constant contact with both parents. The mediator may help the parties determine an appropriate amount of child support or spousal support. He or she may help the parties determine how to divide their property.

During the mediation session, the mediator listens to both parties without taking sides. He or she points out the logic of the party’s argument to the other side so that he or she can consider another perspective. He or she may suggest different options for the parties to consider. He or she often focuses the parties’ attention on how to move forward for the future rather than focusing on the past. In this way, the parties can consider such issues as when each parent will have time with the children, how the child’s safety and welfare can be protected and which other arrangements may work for both parents.

PREPARING FOR MEDIATION

Parties involved in mediation must take the process seriously. They may wind up settling their case at this stage, so it is important that they present the strongest case possible. Parties involved in mediation may wish to assemble documents to help show their side of the story. They may consider different proposals ahead of time. Dealing with issues with another party can be emotional, so it is important that a person emotionally prepare for mediation and be willing to listen to the other party’s ideas.

Before going to mediation, a party may wish to seek legal assistance from a lawyer. Lawyers are often permitted to represent clients during the mediation process so that the party has a clear understanding of the legal implications of different decisions made during the mediation process.

Arbitration

Arbitration is a form of alternative dispute resolution. Parties have their case decided by an arbitrator or panel of arbitrators instead of a judge. One distinct advantage of arbitration is that the parties get to select the arbitrator. They can select someone who has experience in a particular industry or with a particular type of legal problem, whether this involves employment law or insurance contracts. This allows the parties to have someone who is familiar with the same types of issues that the parties are encountering rather than being assigned to a random judge who may not have much experience in this realm.

Arbitration is similar to litigation but usually less formal. Discovery is often limited so that the parties do not spend time requesting information that goes beyond the need for this purpose. Arbitration often results from a mandatory arbitration clause contained in a contract between the parties, but it can also be used through voluntary measures.

MANDATORY ARBITRATION

Many employers and other parties have mandatory arbitration clauses that are included in their contracts. These clauses require the parties to arbitrate rather than litigate disputes. The arbitration provision may include a statement regarding which types of disputes may be arbitrated. However, even if the provision states that arbitration is mandatory for “any and all claims arising out of or within the scope of employment,” California law still prohibits some types of claims from being arbitrated, such as workers’ compensation claims.

Mandatory arbitration provisions typically apply to new hires or existing employees. However, this provision will not be imposed if the arbitration agreement is procedurally and substantively unconscionable. For example, the provision may not be enforced if the agreement is one-sided such as only requiring the employee to arbitrate but not the employer, limit the employee’s rights or impose additional costs or fees that the employee would not sustain with litigation.

Mandatory arbitration agreements are not only part of employment contracts. Arbitration requirements may apply to home repairs, credit cards, phone contracts, health insurance, automotive cases and other cases involving contracts. The commonality with these types of cases is that arbitration is required if any dispute arises through the transaction. The parties give up their right to sue in court when they agree to an arbitration clause.

VOLUNTARY ARBITRATION

Both parties may agree to submit their dispute to arbitration. This process involves voluntary arbitration. Rather than being forced into arbitration, the parties may willingly agree to use this process rather than pursue litigation. Arbitration offers many benefits, such as limited discovery, less time, less expense and confidentiality.

BINDING OR NONBINDING ARBITRATION

Parties can agree whether the decision reached by the arbitrator will be binding or nonbinding. Binding arbitration means that the decision is final. It is not reviewed by a court or subject to appeal except under very limited circumstances, such as if the arbitrator exceeded his or her power or fraud was involved. In nonbinding arbitration, either party can choose to reject the decision made in arbitration and may move forward with a trial. Even if the award is not honored, the process is often helpful because the parties get a better look at the strengths and weaknesses of the case before actually trying it in front of a judge or jury.