Arbitration and mediation: Alternate ways to resolve conflicts

Conflict Resolution comes in many forms—fisticuffs, community justice, litigation, arbitration and mediation.

The first two forms named above are frowned upon and not encouraged. The third form named above is considered to be overused and abused, by the public, and rarely leads to an outcome in which either party feels vindicated.

The final forms listed above, arbitration and mediation, are becoming more and more used. I am familiar with three forms of conflict resolution: litigation, arbitration and mediation. I have been an attorney for 15 years and have engaged in numerous trials in both state and federal courts. I can state with certainty that when all is said and done and a winner has emerged that neither party truly feels as if they have won. Both parties have endured a trial that has tested their nerves and emotions and most certainly has tested their pocketbooks. Even the winner has suffered these consequences of trial. Some trials can go on for days or even weeks, intensifying the bad effects mentioned above. The concept of arbitration has arisen from this quandary create by litigation.

Now, arbitration is not necessarily the answer to all litigation. Arbitration is meant to handle the less-involved cases, or easier cases, and can be valued only up to a limited amount, usually between $30,000 to $50,000. But arbitration frees up the Court’s docket for the more involved and difficult litigation cases.

Arbitration involves the use of trained attorneys who sit as a three-person arbitration panel, hear the case and make a decision upon the case. The case is presented to the panel in the same manner and with the same standards as if being presented to a Judge. The litigants must follow the rules of civil procedure and evidence. The Chair of the arbitration panel is the individual charged with ruling on objections made by the litigants during trial.

Although all of this sounds exactly the same as litigation there are some drastic differences.

1) Arbitration is not final, as in the case of a trial, because the litigants have the opportunity to reject the arbitrator’s award. Now, the rejection of the arbitrators does not necessarily come without some consequences, if the case should go to trial and the outcome is the same or closely the same, there are penalties that can be affixed to the party who rejected the arbitrator’s award.

2) Arbitration cases are limited in the time that the litigants have to present their cases to the arbitration panel. Arbitration cases are only given a total of two hours to be presented to the panel. Generally, each side has an equal portion of time to present their side but if the parties agree one side can use more than the other to present their case. So, in this instance the amount of time that the litigants have to be nervous and the amount of money that will be expended is limited. There will be a winner and a loser in these cases but being the emotional and monetary expenses are limited is usually helpful in the parties feeling that they have had a successful outcome.

3) Lastly, the arbitration panel is not allowed to decide any motions the litigants may choose to make at the hearing.

So, although arbitration is a form of litigation the limited time duration lends to lessening the toll on emotions and costs to the litigants. Arbitration has not gained widespread popularity or usage yet in the circuit court system although a few Illinois Courts have mandated arbitration programs.

The last form of formal conflict resolution is mediation. In this form of conflict resolution a third party called a “neutral” brings the parties together to try to facilitate a mutual agreement between them. The target is for the mediator to have the parties reach an agreement that both can live with but neither are 100% satisfied with. This scenario would be called a “win-win” because both parties each feel, on some level, they have won. Truth be told they have also each lost a little.

In mediation, it is the parties who choose their mediator. Some mediators are strictly civil mediators or those who attempt to resolve conflicts between people that involve some sort of money dispute. There are those mediators who are involved in resolving disputes between parents and involve custody or visitation issues. One of the interesting differences between mediation and arbitration is the fact that in mediation the parties are in control of their mediation process but in arbitration the arbitrators are in control of the process.

By that I mean, in arbitration the only outcome will be some type of money award by the arbitrators but in mediation the outcome can take many forms, money, more/less time with children, the parties doing or not doing something, etc., with mediation the possible outcomes are endless and can be sometimes be very, very creative. For example, I’ve heard of a case of two companies who were battling one another with respect to a name for their company. The name they were battling over is insignificant but needless to say the name was the same or very, very similar for each company. As the mediation progressed the parties were becoming more and more frustrated with the other and so the mediator, as a side thought, suggested the following: “How about you arm wrestle for the name,” to the surprise of the mediator, the parties took them up on it. The parties wrestled, one won and one lost and the matter was settled. After the mediation the parties left together talking to one another on friendly terms.

Mediation is a good forum to be used for cases involving people who need to be able to get along with one another after the matter is settled. Feuding parents is a good example—these individuals need to get along with one another after they have settled their dispute with each other for their children’s sakes. Another example is feuding neighbors—unless one of them considers moving, they need to be able to tolerate each other after the dispute is settled. Mediation is not a cure-all, but it attempts to give the parties, especially in the above two examples, ways in which to cope with each other.

So, as you can see, the Courts are trying to innovate new ways in which to deal with our ever increasing litigious society. It is trying to come up with new ways for individuals to resolve their conflicts and in some cases come to conclusions that help maintain an on-going relationship between them when needed.

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September 2015Volume 2Number 1PDF icon PDF version (for best printing)