MEDIATION & ARBITRATION
Mediation is a process wherein parties in a legal dispute meet with a mutually selected impartial and neutral person with specific training in the area of law at issue who assists them in the negotiation of their differences. It is a completely voluntary process.
Mediation allows parties to control the outcome of their legal dispute rather than turning it over to a judge. The large majority of parties who participate in mediation report a more positive outcome than those who go to court. Mediation is also much less expensive than litigation. In Utah, parties involved in a divorce proceeding are required to participate in good faith in at least one session of mediation prior to being eligible to go to court for a trial.
Mediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is “fair” or “right” does not assess blame, and has no authority to decide anything on behalf of the parties like a judge does. Rather, the mediator acts as a catalyst between opposing interests attempting to bring them together by helping both sides appreciate the risks and problems with their respective decisions if the matter was litigated and tried before a court.
All discussions during mediation are confidential and any settlement offers made in a mediation setting are inadmissible at trial and may not be referenced by either party at trial if mediation fails.
Typically, the parties meet in separate rooms from the outset of mediation with the mediator rotating back and forth between the rooms. This allows each side to freely explain their legal position and mediation goals in confidence with the mediator. It also gives the mediator an opportunity to probe the validity of these positions which has the effect of educating both the parties and their attorneys of the merits of their respective positions.
Arbitration is adjudicatory, as opposed to advisory, because of the fact that the arbitrator (usually a retired judge or attorney) renders a decision at the end of an arbitration hearing, and that decision is final and binding, subject only to a very limited court review. Arbitration is sometimes referred to as “non-binding” if the parties agree to make it so.
Most arbitration is driven by a pre-dispute contract entered into by the parties, in which they agree that if a dispute should arise, it will never get into the court system. The Federal Arbitration Act, coupled with the state arbitration law of the place of arbitration, generally governs the process. By agreeing to arbitration, the parties, perhaps among other things, are waiving their fundamental, constitutional right to a trial by a jury of their peers. They can have no de novo (second trial) after they have gone to arbitration. Unless otherwise agreed, the decision is legally binding and non-appealable, except in extremely limited circumstances, such as in the case of fraud or collusion on the part of the arbitrator. In general, the arbitrator is an impartial person chosen by the parties. The arbitrator reads briefs and documentary evidence, hears testimony, examines evidence and renders an opinion on liability and damages in the form of an “award of the arbitrator” after the hearing. Once confirmed by a court of appropriate jurisdiction, the award can be subsequently entered as a judgment.
Arbitration often is less costly than court litigation, primarily due to the compressed schedule for the completion of discovery and trial. In court litigation, significant expenses are devoted to pre-trial discovery processes, such as written interrogatories and depositions of witnesses.