Alternative Dispute Resolution – Mediation Vs Arbitration

Mediation Vs Arbitration

What Is Mediation?

Mediation is basically a form of negotiation with a facilitator. It does not lead to a binding decision, but instead uses an impartial third-party to encourage the antagonists to find a mutually acceptable solution. A good mediator can greatly increase the chances of settling a dispute before expensive litigation.

What Is Arbitration?

Arbitration is the use of a qualified person to hear the arguments of both parties and make a final, binding decision. Arbitration differs from mediation in that it is binding and that it generally seeks to establish which party is “in the right” rather than seeking a compromise as a solution.

Advantages Of Arbitration – Arbitration has several clear advantages over litigation:

1. Results are achieved on a much shorter time-line

2. The proceedings are private – so outsiders do not learn about the issues

3. Costs are much lower

4. Rules of evidence are less strict, making it easier to get to the truth

5. There is less emotion, making it easier for the parties to deal with each other going forward

Seek A Negotiated Settlement

Even if you are so mad you can’t see straight, you are better off trying for a negotiated settlement before you go to court. Leave the emotion behind and think long and hard about the financial and legal realities.

Listen To Your Opponent

A legal dispute is no different than a sports contest in the need to understand your opposition. Listen carefully and acknowledge the points made by your opponent. Even though you disagree, you will learn from listening and you will increase your chances of negotiating a decent settlement.

Check Your Emotions At The Door

When you are discussing contentious points, don’t let your logic be overruled by your emotions. Avoid personal attacks. If you opponent has an emotional outburst, let it work against him.

Put Yourself In Your Opponent’s Shoes

Try to think like your opponent is thinking. Understand his priorities. You may be closer than you think to a workable solution. This is particularly true if money is not the prime motivator on one side or the other. To reach the best settlement, however, you need to understand what the other side really wants.

Make A Clear Offer Of Compromise

If you are attempted to settle a dispute, make sure to clearly label your compromise as a compromise. By establishing that it is a compromise, you are not sticking yourself with that position if the other party refuses to settle.

Draft The Settlement On Your Nickel

When documenting a settlement, offer to have your counsel draft the agreement. That way, the small provisions that color the agreement will be to your favor, not to your detriment.

Profit From A Quick Settlement

Realistically assess your situation. If you are likely to come out of pocket for a settlement, consider going into an early round meeting with an offer of quick cash settlement. You can often negotiate a favorable deal with cash as an enticement, and cut your overall cost in the process.

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