Mediation
Mediation is a confidential process in which a qualified and neutral third party helps facilitate the resolution of a dispute between two or more people, businesses, groups, and/or agencies. While attorneys are often involved, mediation requires the parties to participate in the process actively and directly. Generally speaking, the mediator’s role is to facilitate constructive communication, to assist in identifying the real issues and interests of the parties, to provide an objective “reality check.” and to help generate various and creative options for settlement. The mediator does not provide legal advice to the parties or render decisions. The parties remain in control of the decision-making process at all times.
Mediation is a valuable and powerful tool for all types of business-related disputes, including ones involving breaches of contract, business dissolutions, shareholders’ derivative litigation, claims of discrimination or wrongful discharge, non-compete agreements, bankruptcy, collections actions, government contracts, real estate, and intellectual property. When utilized and conducted appropriately, mediation is highly effective and offers the parties a number of significant benefits, including the following:
- Saves the parties significant amounts of time and money by avoiding protracted litigation.
- Allows the parties to remain in control of the outcome rather than leaving their fates entirely in the hands of a judge or jury.
- Allows the parties to discuss their dispute in a confidential setting, thereby avoiding unwanted publicity or disclosure of proprietary or sensitive information.
- Encourages and facilitates creative, “out-of-the-box” solutions, and other remedies that the legal system cannot provide.
- Preserves and improves the parties’ relationships going forward.
- Results in greater compliance with the negotiated outcome than a court-ordered judgment.
Mediation is a flexible, informal process that can be conducted in a number of different ways and styles. Facilitative mediation focuses on improving the lines of communication, identifying interests and needs, and brainstorming possible solutions. Some mediators may also incorporate a more evaluative approach and offer an objective viewpoint and opinion regarding the parties’ positions and possible outcomes should the case proceed to trial.
Arbitration
Arbitration is a confidential, adversarial process in which a knowledgeable and impartial neutral (or a panel composed of three or more arbitrators) listens to the parties’ recitations of the dispute, weighs the evidence and testimony presented, and then renders a binding decision. Binding arbitration awards are subject to very limited appeal rights. Alternatively, the parties can agree in advance that the arbitrator’s award will be only advisory.
When conducted appropriately, arbitration can be a more informal, timely, and cost-effective method of reaching a resolution than traditional litigation, and it does provide the benefit of closure. Unlike taking a case to trial, arbitration also allows the parties to select their own decision-maker – someone the parties know is knowledgeable and experienced.