Comparison of Mediation, Arbitration, and Court


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By Norman Pickell, Lawyer, Mediator, and Arbitrator

Many conflicts can be resolved by direct negotiation between the parties (and their lawyers.) However, mediation should be the preferred method of resolving those disputes and conflicts that are unable to be resolved by direct negotiation. Not every dispute is appropriate or suitable for mediation. In the following chart, I have compared three of the most popular methods of resolving conflicts - mediation, arbitration and court (litigation). Thus, you can compare the features of each method and satisfy yourself as to the most appropriate way to resolve your dispute.
  Mediation Arbitration Court (Litigation)
Abuse - if abuse is non-existent suitable suitable suitable
Abuse - if level of abuse is low suitable suitable suitable
Abuse - if level of abuse is medium may be suitable suitable suitable
Abuse - if level of abuse is high not suitable suitable suitable
Adversarial no somewhat yes
Attorneys (lawyers) included yes (usually) yes (usually) yes (usually)
Attorney's (lawyer's) role advisor advocate advocate
Communication generally is between parties between lawyers between lawyers
Compliance with result better success rate not as good a rate poorest rate
Confidential yes yes no
  Mediation Arbitration Court (Litigation)
Control - who has it parties arbitrator judge
Co-operation between parties
(in future)		 best opportunity good opportunity poorest opportunity
Cost least expensive somewhere in between most expensive
Decision-making done by parties arbitrator judge
Decision binding and enforceable yes yes yes
Discovery available no limited yes (usually)
Emphasis is on co-operation conflict conflict
Evidence given no yes yes
Feelings can be expressed yes no no
Feelings can be explored yes no no
  Mediation Arbitration Court (Litigation)
Feelings can be addressed yes no no
Final result determined by parties arbitrator judge
Flexibility on when and where very flexible flexible rigid
Formality very informal somewhat formal very formal
Injunction can be granted no yes yes
Interim order can be made no yes yes
Lawyers included yes (usually) yes (usually) yes (usually)
Lawyer's role advisor advocate advocate
Legal Aid covers it no no sometimes
Legal precedent set no no yes
Limitation period stopped running no no yes
Location - Courthouse no no yes
  Mediation Arbitration Court (Litigation)
Maintain future relationship best opportunity good opportunity poorest opportunity
Media can report no no yes
Neutral - Chosen by parties yes yes no
Neutral - Name mediator arbitrator judge
Neutral - Decides outcome no yes yes
Neutral - Helps parties to talk yes no no
Neutral - Paid for by parties parties taxpayers
Next step if process fails arbitration or court court higher court
Outcome determined by parties arbitrator judge
Place of hearing decided by parties parties court
Public can attend no no yes
Result most creative less creative least creative
Result win/win win/lose win/lose
  Mediation Arbitration Court (Litigation)
Satisfaction level highest somewhere in between lowest
Scheduling most convenient more convenient least convenient
Speed of process fastest somewhere in between slowest
Stress level lowest somewhere in between highest
Temporary order can be made no yes yes
Witness box no yes yes
Witnesses testify no yes yes
Witnesses cross-examined no yes yes


For more information on Mediation, please go to the Mediation Index.

For more information on Arbitration, please go to the Arbitration Index.

For more information on Court (Litigation), please click here.

For information on Norman Pickell's Mediation Practice click here.

For information on Norman Pickell's Arbitration Practice click here.


 

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Norman B. Pickell  Lawyer - Mediator - Arbitrator  58 South Street, Goderich, Ontario N7A 3L5  Telephone (519) 524-8335   Fax (519) 524-1530