Mediation and Arbitration are forms of alternative dispute resolution (ADR) that are intended to avoid the expensive and unforeseeable end result that could result from a legal action. Both mediation and arbitration are non-public forms of dispute resolution.
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Mediation and Arbitration mean that, unlike court cases, they are not an affair of public record. This confidentiality may be an exceedingly important feature to one or both of the parties included in the dispute. Mediation and arbitration can also allow the parties to establish their own ground rules for resolving their dispute, including what types of proof or evidence can be presented, what sort of experts can be consulted, and the idea on which the final agreement or decision will be based.
Of the two, mediation is a more easy-going procedure for resolving a dispute. The mediator is a neutral or impartial third party who helps the parties negotiate a resolution to their dispute. In mediation the parties are answerable for coming to an agreement; it is not the mediator's position to make or impose any decisions on the parties. The mediator pays attention to both sides and offers suggestions that are supposed to help the parties come to a resolution. The trump card to mediation is that, since both parties participate in resolving the dispute, they are more likely to implement the settlement agreed upon. A drawback to mediation is that the parties may not be able to agree with the agreement and will finish up in court anyway.
Arbitration is a more legal process for resolving disputes. Arbitration often goes after formal rules of procedure and the arbitrator may have legal training that a mediator fails to. The arbitrator is a neutral or impartial third party but should have some mastery in the area that is the subject of the dispute. The parties should accord on who the arbitrator will be or on how he or she will be selected. Unlike a mediator, the arbitrator has the charge to make determinations and decisions that are binding on the parties. The arbitrator's job is to listen to both sides and then make a decision that is mutually irrevocable for both parties. Arbitration avoids the risk that the parties won't agree and will end up or finish up in court anyway because the arbitrator makes the decisions and they are legally or lawfully binding. However, the disadvantage of this is that one or both parties may be more disappointed with the result.
Both processes, that is mediation and arbitration have their advantages and disadvantages. The main advantages they both have over a trial are the savings of expenses and time, and a greater degree of the expected outcome. For a small business owner, these could be exceedingly important considerations. There are also possible disadvantages to using mediation and arbitration. Since these alternative procedures are not bound to come after legal precedent in coming to a denouement, parties cannot count on legal precedent to be determinative of the outcome. The parties may also have difficulty in selecting a mediator or arbitrator that they are truly satisfied with and who will be neutral or impartial
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