It is still surprising to me that parties to a contract frown at the idea of mediation instead of an arbitration. Seriously people, arbitration is expensive and seldom takes less time than a full fledged court case. Let me break it down for you:
A full fledged court case – this is initiated in a courthouse by filing a complaint and paying a fee. The case is then assigned to a judge and follows a course of pleadings, discovery, depositions, interrogatories, requests for production, hearings and eventually a trial. All during this you will be paying your lawyer's fees and any costs associated with the representation. A civil case can last years. The average in my experience for your run of the mill two party case in Superior Court (meaning its over $10,000) is 2.5 years from filing of the complaint until a full and complete resolution.
An arbitration – An arbitration is essentially the same thing as a full fledged court case except that you have a private “judge” and you pay that judge. You might have a panel of judges but that is not typical for your run of the mill civil case. For example, I bet you have heard of the American Arbitration Association, AAA for short. The AAA is a business, it is not connected to any particular court. As such, you have to pay for it. You will have to pay a lump sum to hire the arbitrator and then may have to pay hourly for the arbitrator's time. Think of it as having another person you have to pay “fees” to. The last case I was involved in the parties had to pay upwards of $3,000.00 to the arbitrator to get the case started.
Originally arbitrations were a way to avoid the time it took for a lawsuit in the court system. Things could be done quicker and a resolution could be had in a fraction of the time. That would be great if it was still true. However, the parties often want all the same discovery and want to file the same motions as in a trial. As such, the time period is not shortened by much AND you have to pay the arbitrator.
Now let's talk about mediation. Mediation is a process where the parties meet with a neutral third party to create a solution. In mediation the parties have the opportunity to control their own destiny. They can suggest resolutions and work towards a goal instead of fighting. The mediator is not a “judge.” It is not the mediator's way or the highway. The mediator works with both sides in developing a solution instead of “telling” them what the solution will be. Mediation takes far less time than a court case or an arbitration and costs a lot less. I like to say there are no actual losers since the parties work towards a solution and there is no one strong-arming them.
When looking at the three options, a court case, an arbitration and a mediation, only mediation gives the parties the power to contribute to the resolution and to feel like they were in fact, empowered. In the other two it is a judge, a stranger, who decides the parties' future.
For illustrative purposes, let us say mediation is attempted and for whatever reason it is not successful. The options of arbitration and a court case are still there. You have nothing to lose and everything to gain by trying mediation. Caveat, in mediation you will not receive everything you want. Mediation is not a determination of who is right and who is wrong. It is a meeting of the minds to resolve the matter and go on with your lives. To get complete and start living without this monkey on your back.
So, next time you are signing a contract, or have an issue that may be headed towards litigation, give mediation a try a first. It could save your sanity and your money.
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