Arbitration Versus Mediation
In arbitration it is typical to have either one or three neutrals serve as arbitrators who are decision makers and who tell the parties who wins and who loses. Although arbitrations do not strictly follow the rules of evidence, they are more formal and are adversarial as opposed to informal and collaborative like the mediation process.
The parties make openings and closings. They present evidence through testimony and exhibits. They submit briefs on governing law and the facts pertinent to their legal positions.
Where the goal of mediation is a “win-win” solution, arbitration results in a “win-lose” solution because one of the parties prevails just as would happen in a trial. Arbitrators decide on damage awards and, sometimes, on whether attorney’s fees are warranted.
Because there is less control over one’s destiny, unless arbitration is required by the terms of a contract entered into by the parties, mediation has become the alternative dispute resolution preference of choice for most cases. However, there may be occasions where counsel for the parties will prefer arbitration for a particular matter.