Arbitration and Mediation references
Arbitration and Mediation are forms of alternative dispute resolution (ADR) that are intended to avoid the high cost and unpredictable outcome that could result from a lawsuit. Both are private forms of dispute resolution. This means that, unlike a court case, they are not a matter of public record. Arbitration and Mediation can also allow the parties to establish their own ground rules for settling their dispute, including what types of evidence can be presented, what kinds of experts can be consulted, and the concepts on which the final agreement or decision will be based.
The main difference between mediation and arbitration is that in arbitration the arbitrator hears evidence and makes a decision. Arbitration is like the court process as parties still provide testimony and give evidence similar to a trial but it is usually less formal. In mediation, the process is a negotiation with the assistance of a neutral third party. The parties do not reach a resolution unless all sides agree.
Mediation is a more informal process for resolving a dispute. The mediator is a neutral third party who helps the parties negotiate a resolution to their dispute. In mediation the parties are responsible for coming to an agreement; it is not the mediator’s job to make or impose any decisions on the parties. The mediator listens to both sides and offers suggestions that are supposed to help the parties come to a resolution. The advantage to mediation is that, since both parties participate in resolving the dispute, they are more likely to carry out the settlement agreed upon. A disadvantage to mediation is that the parties may not be able to come together on an agreement and will end up in court anyway.
In a mediation, the mediator, essentially, helps parties to settle their disputes by a process of discussion and narrowing differences. The mediator helps the parties to arrive at an agreed solution. He does not decide the dispute. A successful mediation results in an agreement signed by the parties, whereas a contested arbitration results in a decision by the arbitrator himself without the agreement of the parties. In a mediation, there is no such thing as a winning or losing party, because there is no binding decision without both parties agreeing to one.
Arbitration is a more formal process for resolving disputes. Arbitration often follows formal rules of procedure and the arbitrator may have legal training that a mediator does not. The arbitrator is a neutral third party, but should have some expertise in the area that is the subject of the dispute. The parties should agree on who the arbitrator will be or on how he or she will be selected. Unlike a mediator, the arbitrator has the authority to make determinations and decisions that are binding on the parties. The arbitrator’s job is to listen to both sides and then make a decision that is mutually binding on both parties. Arbitration avoids the risk that the parties won’t agree and will end up in court anyway because the arbitrator makes the decisions and they are legally binding. However, the disadvantage of this is that one or both parties may be more dissatisfied with the result.
In an arbitration, the arbitrator looks into the legal rights and wrongs of a dispute and makes a decision. Once the arbitrator has arrived at a decision, it is binding on parties whether they agree with it or not. It is very much like the way a court case is decided by a judge, except that the process does not take place in a court room, and it is not open to the public. As in a court case, there is usually a winning and a losing party in an arbitration.
Both processes have their advantages and disadvantages. The main advantages they both have over a trial are the savings of cost and time, and a greater degree of predictability in the outcome. For a small business owner these could be extremely important considerations. There are also potential disadvantages to using mediation and arbitration. Since these alternative procedures are not bound to follow legal precedent in coming to a decision, parties cannot count on legal precedent to be determinative of the result. The parties may also have difficulty choosing a mediator or arbitrator that they are truly satisfied will be neutral or impartial.
Mediation and arbitration are both viable, affordable and effective alternatives to litigation. If you think you and the other party are capable of reaching an agreement with the help of a third party professional, you should consider mediation. Settling your differences through mediation can help you save time and money. If you believe that you can settle the matter outside the courts but still need someone to make the final decision because you and the other party will not be in a position to negotiate a settlement, then arbitration is best for you.
Silver Divorce Mediation
Elaine T. Silver, J.D. experienced attorney and divorce mediator, has now opened her office for the practice of family law and mediation in Central Florida. After more than 20 years representing clients in family matters in Connecticut, Attorney Silver has joined the Florida Bar and become a Florida Supreme Court Certified Family Mediator.
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