Judging from the morning newspaper, evening news, and nightly television lineup, a viewer might conclude that every legal dispute eventually ends up in court. However, this simply is untrue. The fact is that the vast majority of disputes are resolved before they ever get to trial; many are resolved through what is called alternative dispute resolution (ADR), which includes mediation and arbitration.
In mediation, a trained mediator helps you and your opponent resolve your disagreement by identifying, defining, and discussing the things about which you disagree, in an effort to help you reach a mutual agreement. This is an informal, cooperative problem-solving process, and does not necessarily require you to know the law or to hire a lawyer, although often the parties find it useful to do so.
Arbitration, on the other hand, is a more formal proceeding in which you and your opponent are asked to present evidence and witnesses to an arbitrator, who issues a decision, usually in writing, to resolve the dispute. Arbitration may be binding or nonbinding. If the parties agree to a binding arbitration, it means they must accept the arbitrator's decision as final.
Mediation might be appropriate if you have an ongoing relationship with the other person; you don't feel unduly pressured, coerced, or under duress from the other party to do something you don't want to do; you feel that you can negotiate and speak in your own best interest; you are emotionally invested in the issues at stake; the case involves more than money; you want or need a quicker, more expedient outcome than litigation would allow; there are no lawyers involved (although attorneys can be involved if you want); you think it would help the situation if you could speak directly to the other side; multiple people are involved in the dispute.
Mediation might not be appropriate if there is ongoing abuse of one party by another; there is a history of domestic violence between the parties; the other party is not trustworthy or negotiating in good faith; the issue is not negotiable; you want to set a legal precedent.
In some cases, decisions reached through binding arbitration can be vacated or disqualified (meaning overturned). However, these circumstances are very limited. According to the Federal Arbitration Act, parties may be able to have binding arbitration decisions vacated if they can prove, within three months of the decision being rendered, that the decision was won by corruption, fraud, or undue influence; the arbitrator was biased or corrupt; the arbitrator was guilty of misconduct or misbehavior that prejudiced the rights of any party; or the arbitrator exceeded his or her power.
Cases can get into ADR through a variety of methods. You could elect to take a dispute to ADR; for example, if you have a dispute with your neighbor over a bush that straddles both of your property lines, you both might agree that this issue is better resolved if you work things out informally, preserving a civil relationship and keeping everyone out of court. On the other hand, ADR is sometimes required by a court order or contract. Prior to trial, in order to encourage settlement, courts will sometimes order parties into nonbinding mediation or negotiations. Other times a contract might state that all disputes concerning the contract must be resolved through binding arbitration. Common examples of contracts that include arbitration clauses include credit card agreements, insurance policies, and bank loans.
If you are about to enter ADR, you shouldn't hesitate to contact your attorney if you have any questions or concerns. If you are unsure about whether to bring your attorney into the mix, here are some questions to consider. First, how important is the issue? If the dollar amount is low and no other important matters are at issue, a lawyer's help may not be necessary. However, if the dispute involves substantial money or an important matter such as custody of your children, a lawyer's help is very important. Second, how certain are you that you understand the issue and your rights? Lastly, how emotionally involved are you? A key factor in deciding whether to represent yourself should be your level of emotional involvement and your ability to assume a detached view of the controversy. And when in doubt, the old adage may apply: "A person who represents himself has a fool for a client."
Differences between judges and arbitrators
Judges:
- must obey the rules of procedure in their courts.
- must follow precedent.
- must provide reasons for their decisions, in the interest of making the decision-making process transparent.
- are public officers.
Arbitrators:
- follow the rules of arbitration, which usually are more flexible than the rules of court.
- are not bound by prior decisions.
- do not have to give reasons for their decisions.