A TON OF “-TIONS”: A Primer on Mediation, Arbitration and Litigation
Terry Jessop & Bitner Newsletter
Issue 22, June 2015
As long as people have disputes there will be lawyers. Lawyers typically help clients navigate the court system but there are other methods of resolving disputes as well. Here is a brief overview of the three “-tions” associated with resolving disputes: mediation, arbitration and litigation, not to be confused with other “-tions” which we do not recommend for dispute resolution, such as retribution, deflation (of tires or lungs), mutilation, conflagration, or anything else that may lead to a felony conviction.
Mediation usually occurs in two or more conference rooms in an office building. The mediator (often a retired judge), who is paid an hourly fee by the parties, bounces back and forth between the rooms, explaining the relative strengths and weaknesses of each side’s position. The mediator tries to push the parties together to see if they can settle without incurring additional fees. Unless the parties settle, everything that happens in mediation is confidential, and is not admissible as evidence in a lawsuit.
Mediation is often mandatory as a matter of contract or by order of a court. But once in mediation, the process becomes voluntary. While you may be obligated to attend, there is nothing that says you have to stay in mediation if you do not like how things are going. You can get up and leave at any time. We encourage our clients to make a good-faith effort to settle. If mediation is successful, an agreement is usually reduced to writing before the mediation adjourns. The signed agreement is enforceable. Often, a good settlement at mediation is one where no one leaves happy.
Sometimes the words mediation and arbitration are used interchangeably, but the processes are quite different. Arbitration may be thought of as an informal court proceeding. Instead of arguing in front of a judge in a courtroom, the parties argue in front of one or more arbitrators in a conference room. Like mediation, the parties have to pay the arbitrator(s), in addition to paying their own attorney’s fees. Many arbitrations proceed according to rules issued by the American Arbitration Association, which provide for limited, expedited discovery. Arbitration is designed to be faster and cheaper than litigation and it usually is, but because parties have to pay the arbitrator(s), it can be just as expensive as litigation. Arbitration can be binding or non-binding. In binding arbitration, the arbitrator issues a written ruling, which may include a money judgment. If either party disobeys, the ruling can be filed with and enforced by a court of law.
Litigation proceeds through the court system. Unlike mediation and arbitration, parties do not pay the judge. Litigation tends to be slower and costlier than mediation and arbitration. However, litigation has well-defined rules and procedures, and the parties have access to a judge who can compel one side or the other to act immediately, or to refrain from acting. Utah courts have streamlined the litigation process to make state court faster, more accessible and more affordable to everyday people. Even so, expenses can add up in a hurry.
Which avenue is right for you? The answer depends on your circumstances and the other side’s willingness to participate in meaningful dialogue. If you have a dispute that you cannot solve, then litigation may be the only avenue for resolution.
Give us a call. We can help you resolve your dispute.
© Terry Jessop & Bitner June 2015