Archive for the ‘Arbitration and Mediation’ Category

» Alternative Dispute Resolution: The Growth of Arbitration and Mediation in the 21st Century On Saturday, December 27th, 2008

As the court systems become increasingly backlogged with cases, alternative dispute resolution is becoming an ever more important aspect of the overall judicial system in the United States and in other countries the world over. The primary elements of alternative dispute resolution are arbitration and mediation. While some people use the terms arbitration and mediation synonymously, the fact is that arbitration and mediation are two distinct types of alternative dispute resolution.

Arbitration involves the parties to a case coming together in front of a certified arbitrator. Somewhat like in a court setting the arbitrator takes and considers evidence submitted by the parties. The arbitrator will then consider that evidence and issue a decision. In many cases, arbitration is considered binding – binding arbitration. Therefore, the parties are bound by the decision of the arbitrator.

On the other hand, through mediation the parties come together before a certified mediator. Unlike an arbitrator, a mediator does not merely consider evidence and issue an order. Rather, a mediator works to try to bring the parties together towards common ground and an agreement. In mediation, the parties have to reach an agreement through the guidance and assistance of the mediator. The mediator cannot force an agreement upon them.

In this day and age, many contracts now actually require the parties to such agreements to submit any disputes to arbitration before pursuing other legal actions. This has had the effect of expediting some disagreements and conflicts that would be delayed in their determination due to the backlog that many courts are facing today.

Also at this juncture in time there are now some courts that require parties to a dispute before these courts to participate in mediation in an effort to resolve disputes short of a full blown trial. Mediation has become particularly common in the court system in divorce and other cases involving family law issues – child custody, parenting time, child support and so forth.

In arbitration, the losing party normally is responsibly for the fees associated with that process. In mediation, unless there is an agreement otherwise, the parties normally split or share the costs associated with the mediation process. There can be some other payment arrangements as well depending on the circumstances.

As mentioned a moment ago in this article, both arbitrators and mediators receive specialized training. Moreover, these individuals also obtain certification when they have completed a course of training. In most instances, arbitrators and mediators typically do have law degrees. However, having noted this fact, there are some instances in which arbitrators and mediators do have other types of academic and professional backgrounds.

Finally, both arbitration and mediation have resulted in allowing for some cases to move through the judicial system faster than what otherwise would have occurred. In addition, both mediation and arbitration have resulted in a reduction in the costs associated with certain types of cases. Most experts agree that both mediation and arbitration will continue to be more widely used in the court systems in many states across the country.

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