Mediation Differs from Arbitration
I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.
Today’s question comes from a caller who says “we listened to your last podcast, it talked about arbitration, how do arbitration and mediation differ?”
As mentioned in the last podcast, arbitration is an adjudicative process. The arbitrator actually decides the dispute.
A mediation is quite different. A mediator acts as a go-between or middleman to help the parties discuss settlement and assist them in resolving their dispute.
So, in an arbitration you present evidence to the arbitrators and they decide the dispute just as if they were acting as a judge or jury. Arbitrators are decision-makers and they decide who wins and who loses.
A mediator is a neutral. A mediator decides nothing about your case. The mediator cannot determine who wins or who loses.
A mediator is prohibited from sharing confidential information that you provide to them about the case with anyone. A mediator cannot call up the judge and report about the case. A mediator cannot share your confidential info with the opposing party without your permission.
The mediator functions as a go between for the parties. A good mediator might share their own thoughts about a particular claim, if asked, however they generally keep their opinions to themselves. A mediator can assist however, when they can ask questions to a party to help that party see a potential weakness with their argument or their evidence.
In other words, a mediator might say “well I understand your position, but do you think your position will convince a jury if the jury were to hear the case and consider your evidence in light of all the potential opposing evidence?
As a neutral, a mediator cannot be compelled to testify in a court case about anything you tell them during the process of the mediation.
Typically, in a mediation, the opposing parties meet in an opening session and discuss their general view of the case with the other side. After that the opposing parties retire to their separate rooms, and the mediator will go from room to room and spend time with the separate parties discussing the case and carrying offers and counter offers back and forth between the parties.
Mediations can often result in a settlement of a case. Sometimes it just takes bringing everyone’s attention to a particular matter and gathering them together to discuss the case all at the same time. Sometimes the mediation helps encourage the parties to settle because the mediator causes each party to think seriously about their position, and assess the merit in compromising.
The mediator can sometimes bring the sides together when they otherwise may be reluctant to close the gap between their positions by pointing out that there is no sure thing once you enter the courtroom.
Good mediators usually are experienced litigators. They know the ins and outs of the court room. They know when a position taken is weak and will not prevail in the courtroom. Conversely, they know when a position is supported by compelling evidence and will convince a judge or jury.
Sometimes when parties in the litigation get too caught up in the litigation process, it’s difficult for them to see the strengths and weaknesses of their own positions. The good mediator helps them analyze their positions.
A successful mediation can help the parties come together and resolve their dispute before they have to present the case to a jury and expend all of the costs associated with bringing witnesses into the courtroom.
In short, arbitrators decide cases. Mediators are neutrals, and they decide nothing. Mediators work to bring the parties together to arrive at a mutually agreeable settlement.
I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.