Mediation & Arbitration: What’s The Difference?
Michael Babboni
Personal Injury
The normal procedure for a lawsuit can take a lot of time for proper, legal resolution. If you’re injured, or you lose someone important to you and engage a wrongful death attorney to go to court, you’re about to embark on a very complex undertaking. The goal of a lawsuit is simple; to legally assign fault to someone that’s done something wrong, in order to legally require that person be held accountable for their wrongdoing. That accountability is usually in the form of money, otherwise referred to as “damages.”But a lawsuit means going to trial, which will entail both sides engaging the services of attorneys, and then those attorneys going through the Florida legal system. A trial date will have to be determined, a jury will have to be selected, and then the trial itself will need to be resolved which may take days, weeks, and in the case of some lawsuits, even years before a verdict is reached.
This is one of the reasons why a wrongful death attorney—as well as other types of lawyers—will sometimes suggest a different route; an out of court settlement. But while many people will be familiar with the general concept of an out of court settlement, how one is actually negotiated is a different thing.
Two ways that this can happen are through either a mediation or a binding arbitration, but how do these two forms of negotiation work?
The Mediation
Mediation is often something that happens before a case goes to court. In many instances, the Florida justice system actively encourages parties in a potential lawsuit to sit down for a mediation because many disputes can be settled in this way before needing to fill up an already busy court docket schedule.
Mediation is what happens when the two opposing sides of a dispute sit down to negotiate, usually via a third party acting as the mediator that oversees the negotiations. In this case, the attorneys are usually still involved, but the parties in dispute can actually sit across from each other and communicate face to face. Mediations are not normally very long. A typical mediation will be scheduled to last for half a day, or perhaps a full business day to seek a resolution.
One of the primary reasons why mediation is a popular form of out of court settlement is that it affords a certain amount of flexibility. It is, legally speaking, a non-binding agreement, meaning that while things can be settled and agreed upon here, it is not considered an “official” substitute for a court ruling and so can be challenged if there is any future dispute.
However, mediations also afford a certain amount of confidentiality. If there’s concern for having information come to public light that would be considered inappropriate or harmful, everything remains behind closed doors during the mediation process. So there is a privacy issue that may also be important to the participants involved, and may even be a favorable negotiating point in reaching settlement this way.
Mediations can often be very successful simply because they finally allow the two sides to actually speak to each other in a controlled, mediated environment. Often having the other person’s point of view explained can sometimes lead to more understanding and a faster resolution, but you shouldn’t always rely on this.
A mediation also usually involves the creation of a pre-mediation contract. This just lays out some ground rules, such as duration, confidentiality, and a willingness to negotiate in good faith, with an understanding that if no settlement can be reached now, a court trial is likely to come next.
The Arbitration
An arbitration is binding. This is the biggest difference, and in a legal sense, it means that whatever decision is reached during a binding arbitration will be treated with the same legal significance as a verdict from a jury, or a judge. In other words, there is no disputing an arbitration and calling for a renegotiation once a settlement has been reached, this is considered a legally recognized judgement and shall be recorded and enforced as such.
One of the reasons that an arbitration can be considered a “substitute” for a court trial, but with the same legal weight is because of the process. An arbitration is conducted similarly to a small scale trial, but behind closed doors. Arguments are made, evidence is presented, and a final judgement is rendered, but this time, instead of a jury coming to a conclusion and arriving at a verdict, a final decision is made by the arbitrators. In the normal run of things, there will be three arbitrators who must cast a vote. Two arbitrators are picked by the opposing sides, while a third is selected by the two arbitrators themselves. This way, no stalemates are possible in a vote.