What is the difference between Mediation vs. Arbitration?
Mediation:
- Is a voluntary negotiation led by a mediator who does not make decisions.
- Mediators screen each party first to ensure the matter is appropriate for mediation
- Mediation can be in person or virtual; in one room or by shuttle between two rooms; and can take place over several days or all on a single day; but it is always a process of dialogue, and is rarely if ever done all in writing.
- Parties can reach any agreements they wish
- Is voluntary, though judges can order parties to try mediation
- Parties or either party can choose to leave at any time.
- It is without prejudice; if a party chooses to end a mediation, there are no consequences other than they are back to where they started.
- Mediation is low cost, because the parties share the fees of the mediator, and the process generally is not long.
- Mediation leads to consensual agreements
Arbitration:
- Is like a private court process with each party giving evidence and making submissions
- Arbitrators ensure each person is first screened to ensure the matter is appropriate for private adjudication
- The arbitrator is a decision-maker who will apply the law to the facts presented by the parties
- Parties must agree to arbitrate; judges cannot order parties into arbitration
- Parties cannot terminate the process; only the arbitrator can terminate it
- There is no negation unless both parties agree to adjourn the arbitration for negotiations
- The hearing can be oral or it can be done all in writing
- If there is an oral hearing, the hearing can take place in person or virtually, but the parties are in the same room
- Can be expensive, depending on how many days the hearing will take or how much reading is required.
- Leads to a binding and legally enforceable (and appealable) ruling.
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