Litigation, Arbitration and Mediation: A Primer for Non-Lawyers

Litigation, arbitration and mediation are all dispute resolution processes.    Some people confuse arbitration and mediation.  A few even confuse both with meditation.  Here’s a simple guide to explain their differences.

Litigation begins with one party, the plaintiff, filing a complaint against another, alleging that some legal wrong has occurred for which monetary compensation or equitable relief is sought.  The other party, the defendant, must respond in writing to the complaint and may also claim it has suffered a wrong.   The plaintiff and defendant then undertake discovery to obtain information and request documents from the other party.   They may file motions asking a judge to dismiss the case or for other purposes.   Ultimately, if the case is not settled or dismissed, it goes to trial before a judge selected by the court and in some cases a jury.   In New York, about 3% of State Court cases and 2% of Federal Court cases go to trial.  The judgment may be appealed to a higher court.  In litigation, the court controls the process and the outcome, and the court records and proceedings are public.

Arbitration is similar to litigation, except that it is generally is a shorter process with less discovery and fewer motions.  The parties select the arbitrator or arbitrators, although contractual arbitration clauses sometimes allow the arbitration forum to designate the arbitrator.   The parties generally must pay the arbitrator themselves.  The arbitrator(s) controls the process and, ultimately renders a decision.   That decision usually cannot be appealed, even if the arbitrator was wrong about the law or the facts.   The arbitration proceedings and the award are generally not public, and the decision can be made confidential.

Mediation is negotiating the resolution of a dispute with the help of an impartial person.   Except in court mandated mediations, the parties generally select and pay the mediator.  The mediator does not take sides or make decisions.  He or she helps the parties identify the issues, formulate options and reach a voluntary, mutually agreeable, binding settlement. Mediation often occurs after litigation has started and the parties have completed sufficient discovery to assess their case as well as the other side’s case.   It is generally faster and less expensive than litigation; the proceedings are confidential; the parties are free to find solutions a court or arbitrator cannot impose; it can preserve relationships; and the parties, not the judge or a jury, control the outcome.

Meditation does not occur in a courtroom or around a table.  It involves sitting cross-legged, centering one’s attention on breathing and clearing away thoughts.   It is not a process for resolving disputes.   However, if it helps people pay attention with an open mind and be open and honest with themselves, they are more likely to resolve their differences with others.

Copyright Richard S. Weil January 2011