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What’s the Difference between Mediation and Arbitration?

This is Todd Burnham, the Founding Partner of Burnham Law, and an experienced family law lawyer with a superb record. This is a short post that will explain the difference between Mediation and Arbitration.

Why this matters

Mediation and Arbitration are especially important right now because of COVID-19. In many cases, Mediation is a prerequisite before going to court. With the pandemic and lockdown pushing cases out so far, there is much more time to utilize the mediation process. And if something is urgent, with the courts having such a backlog, what we are doing at Burnham Law is pushing for Arbitration instead.

What is Mediation?

Mediation is a form of alternative dispute resolution where a third party enters the discussion and assists in negotiations between the two parties. The mediator has no decision-making power, in fact, good mediators will avoid giving any advice to the parties. Their role is to use mediation strategies to act as a bridge-builder so that the two parties can come to a resolution.

What is Arbitration?

Arbitration is similar to Mediation, but the third party can make a final decision that is binding, and they don’t even need to have the other parties agree to it. Often, the arbitrator is the same person as the mediator.

Arbitration is like you’re going to court. It short circuits and circumvents a lot of the processes involved in Mediation, and you have a resolution very quickly. If it’s a very complex case, oftentimes Arbitration is really a good idea.

Which one should you use? 

As stated earlier, at Burnham Law, if something is urgent, we tend to push for Arbitration, because that will usually result in a faster resolution.

But at the same time, you’ve got to be careful because every arbitrator, just like judges, has tendencies and biases. You and your lawyer are going to want to check the track record of the arbitrator and see how they’ve ruled on cases similar to yours. If they have made decisions that are positive for the past parties that have been in your position, great! Push for Arbitration. But if they’ve been ruling against other cases like yours, try to stick to Mediation.

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