The three most common types of dispute resolution are mediation, arbitration, and of course, litigation. Here’s a breakdown of how these processes differ.
Mediation
Mediation is a type of dispute resolution process that involves a neutral third party, called a Mediator, who is responsible for helping both parties reach a consensual resolution. Rather than making a decision on behalf of both parties, the Mediator encourages each side to discuss their opinions, voice their arguments, and explore grounds for a potential compromise.
Mediation is a non-binding form of dispute resolution, which means that it’s up to the individual parties to decide if they want to agree to and implement a resolution, not the Mediator. Mediation is fully voluntary, and for small disputes, can involve just one meeting to achieve a mutual agreement.
It’s best to select Mediation for dispute resolution if the current dilemma is negotiable, such as the costs of repairs found during inspection or similar modest financial disputes. However, Mediation can successfully resolve lawsuits involving millions of dollars, such as personal injury cases, if the parties are ready to settle. Together with a Mediator, you can speak to the best course of action with or without the input of lawyers or a judge.
In Saskatchewan all civil lawsuits proceed through a mandatory Mediation phase involving the Dispute Resolution Office once the pleadings have closed.
Arbitration
Arbitration is a type of dispute resolution process that involves a neutral third party, called an Arbitrator, who is responsible for listening to each party’s argument and rendering a decision. Unlike Mediation, where the resolution is non-binding, the Arbitrator’s decision is binding. The Arbitrator essentially plays the role of a judge, but their decision is often confidential and cannot be appealed.
Many elements of Arbitration are flexible, including the Arbitrator themselves. The disputing parties may choose their own Arbitrator(s), decide if lawyers will be present for the Arbitration process, and dictate which standards of evidence and procedures are permissible to use in the resolution process.
Because Arbitration relies on a third party to reach a decision, it’s best to use it for issues that you cannot come to an agreement on alone, or if Mediation has already failed. It’s also wise to select Arbitration if the privacy and cost-effectiveness of the resolution process are relevant to you. For example, commercial and construction disputes, and tax matters related to purchased assets are often better suited for Arbitration.
Litigation
Litigation is the most familiar type of dispute resolution process. It involves lawsuits and the court process leading to a judge or jury to reach a verdict. The key players in litigation are the plaintiff (the party who starts the legal action with a claim) and the defendant (the party accused of some type of wrongdoing).
Like in arbitration, the judge who oversees the case is responsible for considering the evidence and delivering a ruling. Litigation is also a binding type of dispute resolution. However, a major difference between litigation and other types of resolution is that the verdict is a matter of public record.
If privacy is top-of-mind for you, litigation may not be the best avenue for dispute resolution. Litigation is best suited for instances involving a variety of complex issues surrounding significant financial loss or property rights, and the damages or loss at issue are large enough to justify the costs involved.
Note: The information in this blog is not legal advice. Consult a lawyer for advice for your situation.