Mediation and arbitration are forms of alternative dispute resolution, i.e. alternatives to litigation in court and eventually trial. They are important processes, and everyone should consider their use. Sometimes they are superior to litigation and sometimes they are not. Some contracts require a meeting in mediation prior to filing a lawsuit. Some contracts call for the use of arbitration in lieu of the court system. This may have the unexpected consequence of unfairly tilting the playing field in that arbitration can be more costly than litigation.
Mediation is a flexible, confidential process where the parties can meet with a neutral who helps facilitate communication. The parties have a great deal of control in crafting a resolution that suits their needs. It may encompass factors far beyond what a court may consider or do. The mediation process is voluntary in the sense that the parties are free to reach an agreement or not. The neutral does not determine or decide the case; instead the parties make the decision. The neutral may provide guidance, feedback, evaluation, etc. in the process of helping the parties reach an agreement.
Arbitration is more similar to a court case. One or more neutral arbitrators hear the parties' evidence and make a decision as to the outcome. Typically arbitrations are more streamlined than court litigation. They may be less formal than court. There may be limitations on pre-hearing procedures such as discovery or other procedures for resolving a case. Private arbitration is binding in that the award may be turned into an enforceable judgment, just as if the whole case had been heard in court. A court will typically enforce an agreement requiring arbitration.
In 2006, Mike McKay attended and completed a 40-hour mediation training program offered by the Arizona Attorney General's office. He has since served a court appointed mediator in numerous cases filed in Arizona courts, and served as a private mediator in many other cases. Please contact McKay Law at 480-681-7000 for a free consultation concerning mediation and whether it is right for your circumstances.