The vast majority of cases filed in the United States do not reach trial. Many are settled and/or resolved through alternative dispute resolution (ADR). ADR includes both arbitration and mediation.
Arbitration or Mediation?
Arbitration is a way for the parties to present their cases, usually at a much lower cost than at a trial, and have a neutral person or people make a decision. Some arbitrations occur because the parties agreed in a contract, before any dispute occurred, to arbitrate, some occur because the court requires it, and some take place because the parties choose to present their case for arbitration after it’s been filed.
In contrast, in mediation, the third person – the mediator – doesn’t decide the case. Instead, the mediator tries to help the parties reach a settlement. Generally, as someone who wasn’t involved in the case before, a mediator can help all the parties take a more objective view of the strengths and weaknesses of their positions. A good mediator moves the parties toward settlement by respecting and understanding their positions, helping them determine whether a settlement will benefit them more than a trial, and aiding in crafting settlement terms that both sides can accept.
What happens at an arbitration?
During an arbitration, each party presents evidence to one or more arbitrators. The arbitrator or arbitrators decide who wins. If the prevailing party is the plaintiff, the arbitrators decide how much to award for damages. Arbitrations can be binding – meaning the parties must accept the decision and have no option to appeal it – or non-binding, meaning either side can reject the decision and proceed to trial.
What happens at a mediation?
Typically, the parties and the mediator meet together at the start of a mediation, then the parties are assigned different rooms and the mediator moves between them. (This is sometimes known as “shuttle diplomacy.”) Most mediators ask each party to submit a written statement before the mediation. The mediation statement, much like an opening statement at trial, explains the background of the case and the party’s position. The statement may include a settlement demand or offer. In a case that’s fairly new, the mediator may encourage the parties to share their statements with one another, or ask them to give brief opening statements at the start of the mediation, so each party can better understand how the opposing party sees its position. In a case that has gone on longer or that is very contentious, the mediator may forego opening statements and suggest the parties not exchange written statements, as that tends to fan the flames of disagreement and make it harder to settle.
Part of a mediator’s role is to convey settlement proposals from one side to the other. This can provide an advantage over the parties negotiating themselves because it builds in time for each side to think about a proposal before reacting and perhaps rejecting it out of hand. A good mediator, though, does more than simply convey terms. She considers the best way to present a proposal and spends time with each party pointing out what aspects of the case help and hurt that party. Most important, a good mediator pushes the parties toward settlement where it’s appropriate, not stopping simply because parties get frustrated or angry. While some mediators are finished the day of the mediation, many remain available post-mediation to help the parties finalize a settlement agreement or to engage in post-mediation negotiations if the matter didn’t resolve.
Lisa M. Lilly is a certified arbitrator for the Circuit Court of Cook County, Illinois. She is also available to conduct mediations. As an advocate, she has taken part in numerous mediations involving both class and individual actions. Her legal experience and her ability to work collaboratively and see all sides of an issue make her uniquely qualified to serve as a mediator or arbitrator in commercial and personal injury disputes. For many years she has defended corporations, including nationwide insurance carriers, small businesses, and sole proprietors in class and individual actions. She also has substantial experience on the plaintiff’s side, both in working as an attorney with non-profits to represent plaintiffs in labor, education and civil rights class actions and as a paralegal for over six years in a plaintiff’s personal injury/medical malpractice firm. For rates and availability, contact firstname.lastname@example.org.