Mediation & Arbitration

Mediation or Arbitration?  Whether mediation or arbitration is best for settling disagreements depends on the circumstances.

An arbitrator is basically a private judge who rules on the dispute after listening to each party state his or her case. In contrast, a mediator does not mandate a solution. Instead, the mediator is a third-party neutral who helps the parties come to their own mutually acceptable agreement.

Because the parties in mediation may not be able to find a “solution”, arbitration is the more certain way to bring finality to the process.  However, parties in an arbitration lose control over the process and the outcome, whereas parties in a mediation get more control over both the process and outcome.

Arbitration tends to work best when the crux of the dispute is over facts or legal issues. Mediation works best with problems, and places an emphasis on creative solutions. Mediation focuses on moving to a creative solution rather than finger-pointing and fault-finding.

Arbitration feels like a “legal” process whereas mediation is more relaxed and flexible.

Both mediation and arbitration are private sessions in which the participants agree to keep the discussions private.

Arbitration can be binding or non-binding. Binding arbitration results in a decision that typically can’t be appealed. Non-binding arbitration results in an advisory opinion.

Fighting Amongst the Heirs? Try Mediation.  When raw emotions — due to grief and decades-old disputes — obstruct the ability of family members to settle an estate and move on, try mediation. Mediation is less expensive than battling in court, and may result in a more satisfying outcome.

Mediation focuses on finding ways for the adversaries to move to a creative solution rather than the finger-pointing and fault-finding that are common in courtroom and arbitration proceedings.

The drawback is that – because the mediator does not issue any findings or rulings — there will not be a resolution to the issue at hand unless the parties can agree on a resolution. Consequently, mediations work best when undertaken before family members dig in their heels.

It is the responsibility of the individual adversaries to decide whether to be represented by their respective lawyers or to proceed without lawyers.

The mediator facilitates the process by asking a lot of questions to encourage the adversaries to pinpoint their underlying needs and interests, and to communicate their perspectives. An understanding of what lies at the root of the conflict can help lead to resolution.

Some of the needs that can be addressed best through mediation, rather than litigation, include the need to be heard and understood, the need to be treated fairly, the need for respect, and the need to have feelings acknowledged.

Family disputes may arise whenever money and/or family keepsakes are involved (even in happy families).

Seek Wittenburg Law’s assistance early to help diffuse potential conflicts before disagreements get out of hand. To learn more, call 952-649-9771 or email today.