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  • Writer's pictureMichael Kornhauser

Mediation vs. Arbitration: What's the Difference?

Mediation versus Arbitration with Handshake versus Conference Table.

In the realm of dispute resolution, two prominent methods stand out—mediation and arbitration. While both share the common goal of resolving conflicts outside the courtroom, they diverge in key aspects, each offering unique advantages and disadvantages. In this article, we discuss the difference between mediation and arbitration.

 Mediation

Mediation is the process by which parties agree to work with a neutral third party known as a mediator to assist the parties in reaching a mutually agreeable solution to their legal dispute. Unlike a judge (or an arbitrator), a mediator does not make rulings or impose decisions on the parties. Rather, the mediator facilitates communication between the parties, helps them explore their strengths and weaknesses, and works toward the goal of resolving the dispute.


While mediation is often considered “voluntary”, meaning, both parties must agree to participate in mediation, the truth is that judges typically order parties to attend mediation to resolve their disputes and ease the burden on the court system. That said, although a judge might order you to mediation, you have no obligation to settle your case at mediation.

Key Features of Mediation:
  • Mediation is Less Formal than Trial or Arbitration: While attorneys might make opening statements or exchange information during the mediation process, the parties are not required to present witnesses or other evidence.

  • The Parties Control their Fate: In mediation, the parties control their fate and retain control over the outcome. They determine whether the dispute can be resolved and the terms upon which a resolution can be reached. Comparatively, at the conclusion of a trial or arbitration, parties must accept the decision of a judge (for non-jury trials), a jury (for jury trials), or the arbitrator(s), subject to any appellate rights.

  • Flexibility: If the parties are unable to resolve their dispute at mediation, they are free to move their case forward. In other words, the failure to settle a case at mediation has no impact on a Plaintiff’s continued pursuit of justice.

Arbitration

Arbitration, on the other hand, is a more formalized process where disputing parties submit their case to a private arbitrator or a panel of private arbitrators. The arbitrator reviews the evidence and arguments presented by both sides and issues a decision.


Arbitration can either be binding or non-binding. Generally speaking, if the parties previously agreed to submit their disputes to arbitration via a valid and enforceable arbitration agreement, the arbitration will be binding and the parties will be forced to honor the decision of the arbitrator (with limited appellate rights). If the parties did not agree to arbitration, a court might still order the parties to non-binding arbitration pursuant to Chapter 44, Florida Statutes. The distinction between binding and non-binding arbitration is beyond the scope of this article.

Key Features of Arbitration:
  • Arbitration is Less Formal than Litigation: While more formal than mediation, arbitration tends to be less formal than traditional litigation (with a judge and/or jury), with relaxed rules of procedure and evidence. Parties often have more control over the process, including the selection of the arbitrator and the venue.

  • Quicker Resolution: Arbitration is often praised for its efficiency in comparison to court litigation, with the process generally being faster and more streamlined.

  • Confidentiality: Unlike utilizing the court system where all case pleadings, verdicts, and judgments are publicly available, arbitration proceedings and the resulting decisions are generally confidential.  

  • Arbitration Decisions are Historically Smaller than Jury Verdicts: Monetary awards of arbitrators in favor of Plaintiffs are typically less than monetary awards of juries in favor of Plaintiffs.

 

Mediation and arbitration offer distinct paths to resolving disputes. Mediation emphasizes collaboration and informality, while arbitration provides a more formalized process, concluding with the decision of a neutral third party.

 

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