Dispute Resolution FAQ

What is Mediation?

Mediation is usually an informal method of resolving a dispute. There is a neutral person (Mediator) who helps the parties talk about their dispute, and assists the parties in reaching an agreement among themselves. The Mediator does not make the decision, the parties do. The parties cannot be forced to mediate a dispute, it is voluntary. The parties can be represented by attorneys, but not required. If everyone enters mediation with the intent to resolve the dispute, mediation can be a cheaper, faster and better result.

An attorney can advise you as to:

  • whether mediation would be the best method of resolving your dispute,
  • assist with strategizing on how to make the mediation most effective,
  • preparing you for the mediation,
  • drafting a mediation statement
  • representing your company at the mediation, and/or
  • drafting a settlement agreement during or after the mediation.

What is Arbitration?

Arbitration is a method of resolving disputes where a neutral party (Arbitrator) hears both sides present their case, and renders a decision. It can be a binding decision, where the decision is final and can be confirmed in the court, or a non-binding decision, where either party can appeal the decision. Arbitration can be compelled if a signed written contract includes an appropriate arbitration clause. The parties can and should be represented by an attorney, but not required. Unless a written agreement exists specifying discovery and applicable laws, the Arbitrator decides. Arbitration is typically accomplished in a conference room, as a mini-trial, where the parties present evidence and witnesses as they would in court. The Arbitrator gives a written opinion, Arbitrator's Award, as to who won and what they won. Arbitration is less costly than court, but may limit the information that you can obtain from the opposing side.

An attorney can advise you as to:

  • whether or not you are required to arbitrate a dispute,
  • whether the decision of the arbitrator will be final,
  • assisting you in preparing your evidence and witnesses for the arbitration,
  • requesting evidence from the opposing side,
  • drafting an arbitration brief,
  • presenting your case at the arbitration, and/or
  • confirming the Arbitration Award in court or appealing the Arbitration Award.

Can I recover my attorney fees in arbitration or mediation?

In mediation, the agreement will be negotiated between the parties with a neutral mediator. Typically both sides pay their own attorney fees, even when there is a signed written agreement for attorney fees to the prevailing party in mediation. In Arbitration, unless there is a signed written agreement for attorney fees to the prevailing party, it is unlikely that the Arbitrator will award attorney fees. When there is a signed written agreement for attorney fees, an Arbitrator may but not always award reasonable attorney fees to the prevailing party. Consult with an attorney on strategies to recover attorney fees in arbitration.