What is mediation?
Mediation is a process in which all of the parties involved in a dispute meet with a mediator whose role is to assist the parties in finding their own solution to a dispute. A mediator does not make decisions or say which side is right or wrong. A mediator works with the parties, sometimes in group sessions and sometimes in separate conferences, to help them identify the underlying problems in a dispute and assist them in reaching their own resolution.
Are mediations confidential?
Yes, the comments each side makes to a mediator are confidential and may not be shared with the other side without permission. In order to make sure the mediator knows what matters are confidential, many mediators will tell you that they will act on the understanding they can discuss everything with the other side unless you specifically ask them to keep the information confidential.
Can a mediator be required to disclose information he/she learns during mediation?
There are limited circumstances in which a court can require a mediator to disclose comments made during mediation. The mediator will explain the rules involved at the beginning of the mediation session.
How is a mediation agreement enforced?
The final step in a successful mediation is preparation of a written settlement agreement. The settlement agreement can be enforced in court if one of the parties does not comply with its provisions. While the comments made during mediation are confidential and may not be disclosed absent a court order, the settlement agreement may be disclosed to the court. While the agreement may include provisions that neither party will disclose the terms of the settlement to someone that is not involved in the settlement, either party can ask the court to enforce the agreement.
What is arbitration?
Arbitration is an informal dispute resolution process conducted by an arbitrator. At the end of the arbitration, the arbitrator issues a decision which is binding on both parties.
Who selects the Arbitrator?
The parties work together to select an arbitrator. If they cannot reach an agreement, the arbitrator can be provided through an arbitration service such as the American Arbitration Association or the National Arbitration Forum.
Is an arbitrator always an attorney?
No, the arbitrator can be anyone that the parties believe has the knowledge and experience required to resolve the dispute. As such, it is important that you carefully review the qualifications of a proposed arbitrator to ensure they have the legal and technical background to understand and fairly decide your dispute.
What laws apply in arbitrations?
None. An arbitrator is not required to follow the laws of any state or the contract between the parties. The arbitrator’s decision may only be appealed under very limited circumstances. However, your arbitration agreement can require the arbitrator to make his/her decision based on the terms of your contract and the laws of your home state. If you are going to sign a contact with an arbitration clause, or agree to arbitration, you need to make sure this requirement is included in the contract.
Is arbitration always binding?
In most cases it is binding. However, some states have established non-binding arbitration procedures. These procedures typically allow either party to reject the arbitration decision but require that party to pay the other party’s attorney fees if they do not do as well at trial as they did at arbitration.
What is the difference between arbitration and going to trial?
Arbitration is very informal. The arbitration hearing will typically take place much sooner than a trial. However, complex arbitrations can be as time consuming and expensive as trial.