Mediation, Arbitration & Collaborative Law

Most legal cases don't actually go all the way to a trial. Instead, cases are settled through mediation or collaboration, or decided in an arbitration -- almost always for a much lower cost than continuing to fight. Learn about all three of these options for resolving conflict and make educated decisions about your case.



Why Mediate?

dIn most civil court cases, mediation is mandatory and the Court orders the parties to attend.  Before a lawsuit is filed, the parties may attend a voluntary pre-suit mediation.

Mediation has 3 primary goals:

  1. Save client’s time
  2. Save client’s money
  3. Have clients control the outcome of their case in a way that is beneficial to them.

The entire case can be settled at a mediation conference, or just portions of the case.  If the entire case is settled, it is simply a matter of transmitting certain paperwork between the parties and the Court before it is over, usually within a short period of time after the mediation conference.


Mediation is a form of dispute resolution in which a neutral third party assists parties involved in a dispute in reaching a voluntary agreement of their differences. As an alternative to litigation, it is an informal process in which a mediator attempts to facilitate a mutually acceptable resolution between the parties.

The outcome is most often advantageous to all parties, which is not always the case in litigation. Because of significant backlogs that exist in many court systems, mediation usually reduces the time it would otherwise take to resolve disputes.

Most disputes are amenable to mediation. This is particularly true when individuals have ongoing relationships and seek to resolve conflicts in a manner that is beneficial to all parties. Examples of disputes that are often mediated include contract actions, real estate matters, employment issues and divorces.

The benefits of mediation over litigation include lower costs, more certain and acceptable outcomes, as well as confidentiality. To ensure confidentiality, the parties will agree not to call the mediator as a witness if the disputed issues proceed to litigation.

Mediation is the best solution in most cases. It can prevent the costs and emotional stress associated with going to court.

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Mediation FAQs
(click on question for answer)

What kinds of cases can be mediated?

gMost civil (noncriminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment, and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child custody agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. Nonviolent criminal matters, such as claims of verbal or other personal harassment, can also be successfully mediated.

Finally, you may want to consider mediation if you get into a scrape with a neighbor, roommate, spouse, partner, or co-worker. Mediation can be particularly useful in these areas because it is designed to identify and cope with divisive interpersonal issues not originally thought to be part of the dispute. For example, if one neighbor sues another for making outrageous amounts of noise, the court will usually deal with only that issue. If the court declares one neighbor a winner and the other a loser, it may worsen long-term tensions. In mediation, however, each neighbor will be invited to present all issues in dispute. It may turn out that the overly loud neighbor was being obnoxious in part because his neighbor's dog constantly pooped on his lawn or his neighbor's pickup blocked a shared driveway. Because mediation is designed to look at and fix the bigger picture, it's a far better way to restore long-term peace to the neighborhood, home, or workplace than going to court.

How long does mediation take?

Typical mediation cases, such as consumer claims, small business disputes, or auto accident claims, are usually resolved after a half day or, at most, a full day of mediation. Cases with multiple parties often last longer: Add at least an hour of mediation time for each additional party. Major business disputes -- those involving lots of money, complex contracts, or ending a partnership -- may last several days or more.

Private divorce mediation, where a couple aims to settle all the issues in their divorce -- property division, alimony, child custody, visitation, and support -- generally requires half a dozen or more mediation sessions spread over several weeks or months.

How is mediation different from arbitration?

A mediator normally has no authority to render a decision. gIt's up to the parties themselves -- with the mediator's help -- to work informally toward their own agreement. An arbitrator, on the other hand, conducts a contested hearing between the parties and then, acting as a judge, rends a legally binding decision. Arbitration resembles a court proceeding: Each side calls witnesses, presents evidence, and makes arguments. Although arbitration has traditionally been used to resolve labor and commercial disputes, it is growing in popularity as a quicker and less expensive alternative to going to court.

Arbitration has its critics, however. There has been a lot of controversy lately about big businesses requiring their customers or employees to arbitrate disputes with them, rather than taking those disputes to court. Often, these arbitrations are conducted under rules that favor businesses -- for example, damages are limited, time limits for filing a claim are shortened, or information sharing is cut off. Some courts have ruled that businesses can't require consumers and employees to participate in these one-sided proceedings, although others have ruled differently.

How can I be sure mediation will produce a fair result?

gIn mediation, you and the opposing parties will work out a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court:

  • Legal precedents or the whim of a judge will not dictate the solution.
  • If your dispute has undiscovered or undisclosed issues, mediation -- unlike a structured court battle -- gives you the opportunity and the flexibility to ferret them out.
  • Because mediation doesn't force disputants to undergo the fear and sometimes paranoia of the courtroom -- where a judge or jury can stun either party with a big loss -- people who choose mediation tend to be more relaxed and open to compromise.
If I choose mediation, will I still need a lawyer?
In most mediations, you won't need a lawyer right there with you. This is because the parties are trying to work together to solve their problem -- not trying to convince a judge or arbitrator of their point of view -- and because mediation rules are few and straightforward. If your case involves substantial property or legal rights, however, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. You may also want to make a lawyer's approval a condition of any agreement you reach. For more information, see Nolo's article Mediation: Do You Still Need a Lawyer?