Arbitration and mediation may sound similar, and they can both be used in some circumstances, but they’re fundamentally different processes. Knowing the key differences between these methods of legal resolution can help you make the right decision when the time is right for you, like if you’re ever going through a divorce, a custody battle, or any other conflict that can’t be solved on your own.
Defining Key Terms
Let’s start by formally describing each possible method. The most intensive approach to addressing a legal conflict is with litigation, the course of seeking legal action in a court system. In this setting, depending on the nature of the case, you and any other involved parties will each be represented by a lawyer at a trial, and a judge and/or jury will decide the outcome based on the evidence presented and the arguments made.
Mediation attempts to forgo litigation with a simpler, more amicable process between parties. In mediation, an appointed mediator (usually a lawyer or someone with legal experience) will serve as a neutral, third-party observer, and intervene to ensure the two parties involved can have a clear and directed conversation about how to resolve the conflict. They control the process, asking key questions and ensuring each party has a voice, but the party members themselves control the content of the conversation.
Arbitration is another form of alternative dispute resolution (ADR) that can help you forgo the need for litigation. Like with mediation, you’ll appoint a neutral, third-party observer, but this one is called an arbitrator. However, arbitration is a much more formal and organized process; the arbitrator will control exactly how the evidence is gathered, and both parties will consent to the arbitrator making a final decision. The only ways an arbitrator’s decision can be appealed is if they mishandle the law or if they don’t follow the proper process.
Advantages and Disadvantages of Mediation
So why would someone attempt to use mediation instead of litigation? There are several distinct advantages to this approach, including:
- Time savings. Court cases can take a long time to resolve. Depending on what you’re disputing, it may be months or even years before you can reach a decision with litigation—or even longer if you go through an appeal process. Mediation may take multiple sessions, but it usually resolves the issue much faster.
- Cost savings. Court costs vary by area, but they can be expensive. You’ll also be forced to pay your lawyer throughout the duration of the case. Going with mediation should dramatically reduce the bill you (or your partner) pays.
- Mediation also gives you some degree of control over the proceedings. Throughout much of a formal court case, you’ll be stuck watching silently as a spectator, but in a mediation, you’re an active part of the conversation. This allows you to voice your opinions, perspectives, wants, and needs, and gives you a chance to direct the conversation.
- Mediation is a much more amicable dispute resolution system, and gives both parties a chance to talk face-to-face and work out their problems themselves. If you’re trying to stay on good terms (e.g., you’re divorcing but want to co-parent amicably), this is a strong method to preserve a positive relationship.
However, there are some downsides:
- Lack of protection of interests. You won’t have a lawyer on your side, arguing your case. You’ll be doing that yourself. Without someone protecting your interests, you could be taken advantage of.
- Messy dispute resolution. Mediation is somewhat messier than litigation. Conversations between parties can drag on and become disorganized, which can be stressful for everyone involved.
- Neutrality questions. A successful mediation depends on a neutral mediator. If your mediator is unfairly siding with one party, the mediation may not be resolved
Advantages and Disadvantages of Arbitration
Arbitration has some of the same advantages as mediation, including time savings and cost savings. It also has some unique advantages of its own:
- Liberation of responsibility. When an arbitrator is controlling the narrative and making the final decision, you don’t have to worry about making your case, or controlling the narrative. That can be a comfort if you’re unsure of your position.
- When the arbitrator makes a decision, it’s practically final. That means you won’t be hung up on small details, nor will the process be dragged out in any way.
As you might imagine, there are also some downsides here:
- Dependence on the arbitrator. The decision falls on the arbitrator, so it’s possible they could choose an outcome you don’t like or don’t agree with. There’s no backup plan or convenient appeal process.
- Lack of personal voice. You won’t get much of a chance to pitch your ideas or share your side of the story. You’ll only be available to answer the questions your arbitrator asks.
So what’s the best method to pursue—litigation, mediation, or arbitration? There isn’t a clear answer here, because each method has some advantages and disadvantages. The “best” method will come down to the type of case you’re fighting, your relationship with the other party, and how you wish to resolve the problem.