Characteristics |
Mediation |
Arbitration |
Litigation |
| Participation |
Voluntary. Facilitated by trained mediators. |
Voluntary. May be mandated under contract.
Conducted by Arbitrators |
Compulsory. Once initiated, conducted by
judges. |
| Control over. Input.
Definition of disputes |
Parties control input. Focus is on parties;
their perceptions and concerns. |
Tends to be legalistic ("court-like"). |
Lawyers have large measure of control over
presentation of argument. Dispute must be framed to fit legally recognized
cause of action. |
| Procedures |
Flexible. Parties can tailor procedures
to suit dispute. No discovery. No restriction of issues raised and
particularly, no "hidden agendas." |
Varies with context, but tends to be formal.
Rules of evidence apply unless parties otherwise agree. |
Formal. Rules of evidence apply. Discovery
and interrogatories. |
| Public - Private |
Private. Confidentiality of sensitive information
can be protected. Lack of publicity. |
Private. |
Public access to proceedings, lack of privacy. |
| Control over outcome |
Parties control decision-making and therefore
OWN the process and decision. |
Arbitrator decides. |
Judge or jury decides (except family law
where there are no jury trials). |
| Nature of solutions |
"interest based." Collaborative compromise
(Win-Win) solution. Tends to preserve or restore relationships. Can
take account of both commercial and legal concerns. |
Win-Lose solution. Focus is on which side
will prevail. |
Win-Lose solution. Tends to polarize parties.
Focus is on legal issues. Establishes a binding precedent. |
| Timeliness |
Parties control timing. |
Can be speedy unless process or award challenged
in court proceedings. |
Slow, due to long court matter lists and
procedural delays, prolonging finalization. |
| Cost |
Usually significantly less expensive than
litigation; from 10% to 50% of the cost of a trial. |
Varies. In complex cases, may be as or more
expensive than litigation. |
Expensive, due to time, required procedures
throughout the process and legal representation during entirety of
process. |
