Mediation and arbitration are two forms of alternative dispute resolution (ADR) that parties can use to settle their differences outside the courtroom. In this blog, we will discuss these two processes, how they work, and how they differ.
What is a mediation?
Mediation is a process whereby both parties agree to meet with a mediator who is trained in helping people resolve their differences. The mediator is not looking to determine who is right and wrong, but instead, they are trying to help both parties find an acceptable solution to end the dispute.
When you go into mediation, you are not trying to “win” but instead find a compromise that works for everyone involved. And in disputes between employer and employee that go to mediation, a resolution is found in 80-90% of all cases.
What do employees need to know about mediation?
The main thing that employees should know when they head into mediation is that this process is about finding a compromise. In most cases, you will not get everything you want, but the mediator will work to find a solution that works for everyone.
What do employers need to know about mediation?
Employers should be aware that the employee involved in the dispute usually has very strong emotions. Since most employees spend more time at work than they do with their spouses, emotions are likely running very high. If the employer encourages the employee to share their feelings and how they have been impacted by the dispute, this can be very cathartic for the employee and will often help lead to the resolution.
What is an arbitration?
When there is a dispute in law, the typical path is to go through the court system – either through the small claims court or the supreme court. There is an alternative way to settle this type of dispute if both parties agree – and that is through arbitration.
In an arbitration, the parties will hire an outside person – usually a lawyer – to act as arbitrator. The arbitrator will act as the decision maker at a hearing and then decide on the case, which will be legally binding. So, unlike a mediation, there will be a judgment made at the end of an arbitration.
What are the pros and cons of arbitration?
One of the advantages of arbitration is that you can hire someone very knowledgeable in the area of employment law that is being disputed. They may be a senior lawyer or even a retired lawyer, but they will be someone who can make a very informed decision on your case.
Another benefit is that in most cases, you will see an arbitrator much faster than you would be able to get your case into court to be heard by a judge. Where you can usually get your case to arbitration within a few months, getting your case to court will likely take a year or more.
Finally, the process for arbitration is much more flexible than the strict rules that need to be followed in the courtroom. In arbitration, you can control the process to a certain extent and work with the lawyers to produce a smoother and more streamlined hearing.
There are also a few disadvantages to arbitration to be aware of. The first is that you have to pay an arbitrator where you wouldn’t be paying a judge, and the cost will usually be at least $400-500 an hour. Obviously, if the arbitration runs for multiple days, this can get expensive.
Combining a mediation and arbitration
The third option to mediation or arbitration is a mediation that can turn into an arbitration. There is a process where you can hire someone for mediation, and then if that doesn’t work, it can turn automatically into an arbitration. This is usually referred to as a “med-arb”. You may wish to discuss this with your lawyer to see if it makes sense for your case.
Contact Kent Employment Law
If you are an employee or employer with a dispute, we can help you with your case – including through alternative dispute resolution processes like mediation and arbitration. Contact us today to speak to an employment lawyer.