Mediation and Arbitration – What’s the Difference?

There are several different ways to resolve a case before proceeding with extended litigation.  In general, this is referred to as alternative dispute resolution.

Both mediation and arbitration may be used to resolve a dispute without going through extensive litigation or trial.  Arbitration tends to refer to a legally-binding process, while mediation is a non-binding process.  Both involve third parties who assist with the process.

Mediation is a commonly used tool to avoid extended litigation and trial.  Mediation involves utilizing a certified mediator, who is a neutral third party.  In mediation, the parties can freely and confidentially present their positions separately to the mediator.   The mediator helps the parties by clarifying the issues and encouraging compromise.  Mediators do not give legal advice, but they assist the parties in coming to an agreement.  If the parties come to a final resolution in mediation, they may draft an agreement that becomes binding.

Arbitration is a process more formal than mediation but less formal than trial.  Arbitration may involve multiple arbitrators who serve as judges, make decisions, and give opinions.  The parties still present evidence and give testimony in arbitration.  Before entering arbitration, the parties agree to allow the arbitrator to decide the case, and the arbitrator’s decision is legally binding. Many contracts include a binding arbitration clause which requires any disputes between the parties be resolved through arbitration instead of litigation.

If you have questions about a case that may be resolved through arbitration or mediation, a litigation attorney like Sean Foss or Sarah Aaberg can help you.  Contact O’Keeffe O’Brien Lyson Foss in Fargo, North Dakota to discuss your case or call 701-235-8000 or 877-235-8002.