Part of being great trial lawyers is the ability to accurately assess our client’s cases– to gauge the chances of recovery when we’re representing a plaintiff, and to evaluate the risk of exposure when we’re representing a defendant.  Having this knowledge is vital in any case, but is even more important when representing clients in different froms of alternative dispute resolution (ADR), such as arbitrations and mediations.  

Make no mistake– although many people use the phrases arbitration and mediation interchangeably, they are extremely different.  While both are forms of alternative dispute resolution used as a different method to resolve a lawsuit other than through the courts (be it judge or jury), the two processes carry very different implications.   

Arbitrations are almost always binding alternatives where a single individual (or group of individuals) determine the outcome of a case in lieu of a judge.  Unlike almost all other areas of the law, once the arbitrator makes a decision, the decision becomes virtually impossible to overturn.  Depending on your perspective and the outcome of the case, this can either be extremely good or extremely bad.  Having the knowledge and ability to convince the arbitrator to rule in your favor becomes of critical importance.  

Mediations, by contrast, tend to be voluntary methods in which parties attempt to amicably resolve a dispute.  It is not uncommon for a mediation to happen either prior to a lawsuit or after a lawsuit is filed.  Although a mediator usually involves a third party that attempts to facilitate the resolution of a lawsuit, neither party is required to agree to any specific terms.  If a party is unhappy with a mediation, then a lawsuit can proceed without issue.  With that said, a mediation can be an effective tool to help resolve a lawsuit.  

At H&P, we have represented countless people and companies in both arbitrations and mediations.