Comparison Chart

MEDIATION

  Facilitated Negotiations

ARBITRATION

 Private Arbitrator decision

  •       LITIGATION
  • Third-party facilitates negotiations.  Parties control outcome

    Usually final and binding-limited rights of appeal.

    Judge and/or jury renders binding decision with rights to appeal.

    Private, informal. Voluntary. By Agreement

    • Private, more formal than mediation. Usually voluntary/sometimes statutory.   By Agreement/sometimes statutory.

    Public, very formal. Legal/constitutional rights, including jury.  Non-consensual.

    Informal rules and procedures.

    • Relaxed rules of evidence and limited discovery. Governed by fixed rules and procedure which can be negotiated or tailored to particular dispute. Use of counsel is optional
    • Governed by rules of court and rules of evidence.  Extensive discovery procedures.  Almost always requires legal counsel
    • Creative Win-Win solutions are possible. Parties can select options that best meets their needs and interests
    • Arbitrator(s) decide appropriate remedies. Creative solutions are not the norm. Awards/decisions enforceable in court of law.

    Remedies are fixed, based on law, precedent and procedural requirements.

    Cost effective and quick (weeks to months).

    • Usually more cost-effective than litigation. Arbitration generally concludes within months of filing of demand/submission
    • Usually not cost-effective in commercial/business disputes compared to alternatives.   Slow can take one to three+ years.
    • Mediator usually selected/hired by parties because of knowledge, background, training and trustworthiness. Mediator is a conduit; motivator; evaluator; facilitator; communicator; process person and deal maker
    • Arbitrator(s) usually has experience in subject matter and is neutral; objective; independent and mutually selected/hired by disputants

    Judges/juries often lack expertise in subject matter of dispute.

    Incentives

     - Resolving dispute in an informal businesslike manner

    • - Direct involvement of disputing parties
    • - Maintaining control over outcome
    • - Cost and time savings, fast and economical
    • - Maintaining a continuing relationship
    • - Benefit of knowledge; expertise and experience of     the mediator
    • - Early case evaluation and assessment

    Incentives:

             - Resolving disputes expeditiously in a less formal, businesslike setting than litigation

    • - Dispute resolved by neutrals with expertise
    • - Minimize loss of goodwill
    • - Private
    • - Lack of appeal brings dispute to a final and binding resolution
    • - Cost and time savings

     Incentives

    Decision/outcome appeal able

    Can have effect of precedent

    “Stronger” side has decided advantage in forcing favorable settlement

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    copyright 2001 Kuniyuki & Chang

     

     

    copyright