MEDIATION & ARBITRATION 

Mediation vs. Arbitration:

What’s the Difference?

The main difference between mediation and arbitration is the process used to solve your conflict. Both options will help you solve a legal issue outside of the traditional court process, but they use two different methods to get you from A to Z.

  • Mediation: a non-binding process generally conducted with a single mediator who does not judge the case but facilitates discussion and eventual resolution of the dispute.

  • Arbitration: typically a binding process that replaces the full trial process with multiple (often three) chosen people to serve as judges in your case.

Arbitration is generally conducted with a panel of multiple arbitrators who take on a role like that of a judge, make decisions about evidence and give written opinions (which can be binding or non-binding). Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Then, those two arbitrators select a third arbitrator, at which point the dispute is presented to the three chosen arbitrators. Decisions are made by majority vote.

Arbitration and mediation are similar in that they are alternatives to traditional litigation, and sometimes they are used in conjunction with litigation (opposing parties may first try to negotiate, and if that fails, move forward to trial). Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. 

The Success of Mediation in Modern Litigation

Litigation is generally something people seek to avoid. It's expensive, time consuming, emotionally draining and unpredictable –- until a judge or jury decides the case, you can never be certain of the outcome. Because litigation is so inefficient for most of us, alternative dispute resolution, such as arbitration and mediation, has become increasingly popular. But before moving forward with possible alternative dispute resolutions, you should first know the difference between arbitration and mediation.

Mediation has enjoyed increasing popularity as an important part of the litigation process. For example, in Florida, almost all lawsuits are required to be mediated before a court will allow them to be put on the trial calendar. The reasoning behind this requirement, according to the Florida Senate, is because mediation has proven effective in reducing court dockets and trials, and offers a more efficient, cost-effective option to litigation.

Mediation enjoys such high success rates because the parties are brought together in an environment where they can freely and confidentially present their position in front of a neutral third party. Mediation attempts to limit the issues and put them into proper perspective. Participants often feel much better after having an opportunity to get things "off their chest," and also benefit from hearing the other party's point of view. The neutrality and more relaxed atmosphere of mediation may eliminate the desire to continue hostile litigation once both parties have seen all the issues in a fair light.

Mediation can be used for any kind of dispute; there is no need to wait until a dispute results in a lawsuit and is sent to mediation by a judge. Pre-lawsuit mediation is becoming more widely accepted as a sensible way of resolving disputes before they turn into litigation. Besides being confidential and non-binding, mediation is relatively quick and inexpensive compared to litigating a dispute.

Please note that while most certified mediators are attorneys, mediators will not give legal advice during the mediation and are not supposed to make legal conclusions about the merits of either party's position. When the parties come to an eventual agreement, the parties themselves will put the agreement in writing and sign it so that it then becomes a binding contract.

Pre-Mediation Contracts

If you want to mediate a dispute, you and the opposing party should enter into a pre-mediation contract.  This simple contract should include the following:

  • The mediation should be confidential and non-binding.

  • The parties should agree on who will conduct the mediation and how the mediator will be paid. The cost of the mediator is typically split between the two parties.

  • The parties should agree on the length of the mediation. Most mediation is scheduled for either a half-day or a full day.

  • The parties should agree to mediate in good faith until either party reasonably determines that it is fruitless to continue. If the parties cannot reach an agreement, the mediation will result in what is known as an impasse.

ALTERNATIVE

DISPUTE RESOLUTION

MEDIATION & ARBITRATION
 

When disputes arise under contracts calling for mandatory mediation or mandatory arbitration, the parties are bound under contract to follow out-of-court private procedures. These proceedings can avoid the greater disruption, expenses and downside risks resulting from litigation. With guidance of counsel, mediation can be the most economical and expeditious route to favorable resolution.  In many instances, holding voluntary mediations can result in settlements without involving any litigation or arbitration proceedings. 

As part of Accel’s transactional practice we counsel our clients on the advantages of including mediation as a requirement in contracts, often as a prerequisite before filing a lawsuit and before a court orders mandatory mediation. We also advise clients on the pros and cons of choosing mandatory arbitration over litigation.

Recognizing the benefits of mediation, many courts require that the parties mediate during litigation. In addition to mediation under a court order, we proactively advocate voluntary use of mediation prior to litigation or during the first few months after a complaint is filed in order to quickly settle the dispute. Generally, holding mediation early on can benefit clients by opening up communications in a structured environment, leading to better understanding of impediments to resolution and, hopefully, resulting in settlement before having to go forward with litigation or arbitration proceedings.

Our attorneys have been representing clients in arbitration since the 1980’s. We also have extensive experience in working with a wide variety of mediators to best guide the mediation to settlement whenever possible. Our attorney team includes formally trained experienced negotiators who know how to best present the client interests in ADR.

Formal mediations are normally held by a Mediator. Often the Mediator is an attorney who embraces the neutral role of facilitating settlement. Separate and apart from representing clients in ADR, Accel also provides Mediation Services where an Accel attorney serves as the Mediator, i.e., not representing either party nor having any biased interest in the outcome.  As a Mediator, the Accel attorney only facilitates ADR discussions and settlement negotiations for parties who are not clients of the Accel law Firm.

Presently, Fred Romano offers mediation services. Fred is a Florida Supreme Court Certified Mediator. Although certified by the Florida Supreme Court, Fred’s services are not limited to matters in Florida. He is available to serve as a mediator in any state or country on all civil matters. With his broad experience as a transactional IP attorney and his fluency across many complex technologies, Fred is highly qualified to mediate many types of disputes ranging from the simple to the complex. He is available to conduct mediations involving complex legal issues, insurance claims based on technology-based controversies, intellectual property claims based on infringement, misuse of trade secrets and damages, and disputes arising out of e-discovery.

Florida Supreme Court Certified Mediator