As litigators, we are expected to handle trials in the courtroom and explain the litigation process. What many clients often do not realize is that the art of litigation includes other forms of dispute resolution like arbitration and mediation. Both offer advantages that go beyond a courtroom. Most notable is that a judge must follow the law and is without the ability to render decision beyond what the law allows. Sometimes that means what is in a client’s best interest or the client’s desired outcome cannot be achieved. Alternatively, we can consider utilizing mediation and arbitration in such circumstances.

Mediation is a form of dispute resolution to empower the parties to make their own informed and voluntary decision as the parties themselves develop a solution to their dispute. It typically involves a dialogue with the aid of a mediator who facilitates their conversation to help the parties explore options for resolution. The mediator can provide insight into what might happen if the case goes to trial but the mediator will not make any decision as to who “wins” or who “loses.”  The main advantage in submitting to mediation is that the parties get to retain control over the final outcome in developing a resolution that serves their goals and interests.

Arbitration is another form of dispute resolution that is more akin to a trial. Similar to a courtroom with a judge, arbitration involves a neutral third-party, the Arbitrator or sometimes multiple Arbitrators, who will decide which party “wins” the dispute. The parties appear before the Arbitrator at a hearing where they present evidence through documents and witness testimony, similar to a courtroom. The parties, through counsel, present their position as to why they rightfully deserve the victory in a binding decision.

Like litigation, arbitration culminates with a decision made by someone else based upon the evidence presented at the hearing. Unlike litigation that is public record, arbitration occurs through a private organization with its own set of rules for procedure. While the arbitrator will likely rely upon state law or prior court decisions that interpret the law, there is more “leeway” in the sense that the arbitrator can make a decision based upon other factors as well including what appears fair or equitable rather than what is legally binding. This allows for some other matters to be considered which otherwise would not be permitted in a courtroom, such as hearsay. There are distinct benefits at times for choosing arbitration, most notably that arbitration is confidential.

Ultimately, the decision to submit to arbitration or mediation must occur by agreement with all parties. Without one, the remedy remains to utilize the court system only. If you would like to consider mediation or arbitration as an alternative dispute resolution for your business, please reach out to the attorneys at RKW.