Courtrooms are very formal, intimidating places. Most court systems have somewhat complicated rules of procedure that are strictly followed. Failure to follow the procedure can result in your case getting thrown out of court and a waste of your time and effort. To make matters worse, the evidence a court can consider in its decisions is limited. Most people who go to formal trials hire attorneys who are experts in procedure and evidence rules, but these attorneys typically charge by the hour. Trials (and the preparation before they start) can last weeks, months, or even years, which makes going to court an expensive endeavor.
Although long trials are sometimes necessary for the resolution of a case, there are alternatives to a trial. Many people choose instead to negotiate directly with the opposing party to reach an out of court agreement. However, tensions between the two parties might make these direct negotiations difficult, if not impossible. Parties who not think they should talk directly to the opposing party but still wish to avoid a trial may consider arbitration or mediation.
How Arbitration Works
Arbitration is a quicker, lighter version of trial. In arbitration, both parties pick a third person to decide their case. Usually, this third party, called an arbitrator, is an expert in the legal field at issue. Each party has a chance to tell his story, and the rules of evidence are much looser. The arbitrator then considers the case and makes a decision based on her understanding of the law. Sometimes, the arbitration is considered "binding," which means that it usually cannot be reviewed or changed by a court. If the arbitration is not binding, the parties can still go to court if they disagree with the decision, or they can follow the arbitrator's ruling.
What Mediation Can Do
By contrast, a mediator does not make a decision for the parties, but rather helps the parties reach a decision on their own. Mediators are also experts in the field, and use their expertise to have frank discussions with each party about their legal rights and liabilities. If the parties reach an agreement, the mediator will help them put the agreement in writing and get it approved by a judge. That agreement is then the binding order of the court. Mediation is a popular choice in legal areas like family law, often fraught with high emotions, since mediation can help the parties come to unique and creative agreements that a court might not be able to reach.
Along with basic negotiation, mediation and arbitration are an area of law called "Alternative Dispute Resolution" or ADR. This section contains informational articles and other resources designed to educate you about ADR and about a lawyer's role in an ADR process.