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Alternate Dispute Resolution: Mediation vs. Arbitration

Very rarely in the course of legal practice will you ever encounter a client who comes out of a tedious deposition or protracted hearing and says, "that was fun, let's do it again!" While there will inevitably be clients who insist on having their day in court, often times parties to a lawsuit may want to know if there is any way to settle their dispute without having to go to court.

When dealing with a first-time litigant, he or she may not even be aware that there exist alternative dispute resolutions (or ADR) which refers to any means of settling disputes outside of a courtroom. "ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs." Cornell University Law School, Legal Information Institute. The two most common types of alternative dispute resolution which your client is likely to encounter are mediation and arbitration.

First, mediation is an informal and generally voluntary alternative to litigation, except in the case of a contested divorce in Tennessee in which at least one mediation is required before having a hearing. Mediation is confidential, and you will most likely be asked to sign a confidentiality agreement to that effect so there is no threat to the parties that the mediator can be called to testify against one litigate about what was spoken at mediation, except in limited circumstances where the disclosure of abuse is made.

A mediator is a third-party neutral who acts as a "go between" to bring the two parties to a resolution that they may either accept or reject. There is no trial or hearing involved. It is the role of the mediator to determine the parties' interests and to help them explore practical, legal solutions to their case. The mediator does not make any decisions regarding a potential settlement, so that the parties are able construct their own agreement. During a mediation either party has the authority to end the negotiations at any time.

Often times when cases are resolved through good faith mediation, the parties are able to reach an expedited solution which can save them both the time and expense of attorney's fees, court costs, and experts' fees, etc. The parties can even sign a mediated agreement which will be legally binding upon them. Mediation has been shown to reduce the likelihood of further court involvement while also improving client satisfaction on both sides of the dispute.

Arbitration has many similarities to mediation in that the parties can select a third party neutral who conducts a confidential version of a "mini trial" with limited discovery and simplified rules of evidence. An arbitrator can be selected by agreement of the parties. Where no agreement can be reached your client may wish to select an arbitration panel, generally composed of three arbitrators, in which each side selects their own arbitrator, and the two arbitrators then select a third.

In addition to selecting the arbitrators, the parties may also be able to choose the applicable state law and venue where the arbitration will occur which lessens the home field effect for both parties to ensure neutrality. During the arbitration, the arbitrator or panel will listen to both sides of the case, deliberate, and issue a written decision, or the arbitral award. The opinions of an arbitrator are not public record making arbitration more a more private form of ADR than going to court. Like mediation, arbitration must be consensual and may only occur is both sides of the dispute have agreed to it. In contrast to mediation, when a party submits to arbitration, it cannot unilaterally decide to withdraw from arbitration at any time. Additionally, the decision of the arbitrator or panel is the final resolution and easy for the court to enforce.

Negotiation and compromise are the central tenants of alternate dispute resolution. As you can see, the two most common forms of ADR, mediation and arbitration, are avenues which can effectively resolve a case where the clients are willing to participate. Mediation and arbitration can allow the parties to control the litigation process and reach a solution while saving them time, money, preparation and general worry of a trial.

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