Arbitration vs. Mediation

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WHAT IS “ALTERNATIVE DISPUTE RESOLUTION”?

Alternative dispute resolution (ADR) refers to arbitration, mediation, and other means of dispute resolution to resolve a legal case—excluding things such as a court trial or other formal legal proceedings requiring court intervention.¹Utah Code § 78B-6-202, Utah Alternative Dispute Resolution Act, Definitions. For example, it can be cumbersome to go through the court process just to get a trial date nine months later when one wants to resolve their legal dispute as soon as possible. ADR provides different, expedited, and intendedly better options to resolve a legal dispute.

WHAT IS MEDIATION?

Mediation is a collaborative meeting in which the disputing parties seek to resolve their differences using a skilled, trained, and neutral third party—the mediator. As a dispute resolution process, mediation has the advantages of being informal, confidential, and collaborative. Mediation typically proceeds and resolves the parties’ dispute quicker than going through formal litigation and often results in fewer expenditures of time and money. The final agreement reached during mediation is not imposed upon the disputants; instead, the disputants design the agreement according to their own interests. Finally, mediation is not an adversarial process, so the parties have the potential to preserve their relationship once the mediation process has concluded.²Utah Courts, Mediation / Arbitration Frequently Asked Questions, https://www.utcourts.gov/mediation/faq.html (last modified Mar. 22, 2017).

ENGAGING IN MEDIATION

A judge or court commissioner may refer any case to mediation. A party may file an objection to mediation with the court, and the objecting party may win the objection if good cause is shown.³Utah Code § 78B-6-207, Utah Alternative Dispute Resolution Act, Minimum Procedures for Mediation. Any settlement agreement made by the parties as a result of mediation may be executed in writing, filed with the court, and enforced as a formal judgment (or order) made by the court. If the parties stipulate to dismiss the action, any agreement to dismiss shall not be filed with the court.⁴See id.

WHAT IS ARBITRATION?

Arbitration is an evidentiary hearing, similar to a trial, in which the arbitrator hears arguments, reviews evidence, rules on motions where appropriate, and determines awards (i.e., determines which party wins and what they win). Arbitration is less formal than litigation, and it is somewhat more collaborative in that the parties choose the arbitrator together and agree upon the extent of discovery (i.e., what evidence the parties want to use). Arbitration can be convened and conducted more quickly than a formal trial and is confidential. In the case of a non-binding arbitration proceeding, the award can be accepted and reduced to an agreement, or the parties can reject the award in favor of a trial de novo⁵Courts, supra note 2. (i.e., “a new trial on an entire case, where both questions of fact and issues of law are determined as if there had been no trial in the first instance.”⁶Wex Definitions Team, Trial de Novo, https://www.law.cornell.edu/wex/trial_de_novo (last updated Nov. 2021).).

AN ARBITRATION AWARD

An award in an arbitration proceeding is in writing and, at the discretion of the arbitrator or panel of arbitrators, may state the reasons or otherwise explain the nature or amount of the award.⁷Utah Code § 78B-6-206, Utah Alternative Dispute Resolution Act, Minimum Procedures for Arbitration. The award is final and enforceable as any other judgment in a civil action unless rejected by one or both of the parties involved.⁸See id.

WHY USE ALTERNATIVE DISPUTE RESOLUTIONS?

ADRs, such as mediation or arbitration, are effective, less expensive, expedited, and tend to produce more satisfying results for the parties than traditional litigation. ADR offers an alternative, or supplement, to the processes associated with a court trial, and it promotes the efficient and effective operation of the courts by authorizing and encouraging the use of ADR to secure the just, speedy, and inexpensive determination of civil actions filed in the courts.⁹Utah Code § 78B-6-203, Utah Alternative Dispute Resolution Act, Purpose and Findings.

WHO CAN PROVIDE ALTERNATIVE DISPUTE RESOLUTIONS?

Within the Administrative Office of the Court, a director of Alternative Dispute Resolution Programs is appointed by the State Court Administrator.¹⁰Utah Code § 78B-6-204 – Utah Alternative Dispute Resolution Act, Dispute Resolution Programs – Director – Duties – Report. The Administrative Office of the Courts employs or contracts with ADR providers or organizations on a case-by-case basis, service basis, or program basis. The Administrative Office also provides programs for training ADR providers and orienting attorneys and their clients about the ADR programs and procedures available to them.¹¹See id.

An ADR organization is an organization that provides training for ADR providers or other ADR services.¹²Utah Code § 78B-6-202(2), Definitions. An ADR provider is a neutral person who conducts an alternative dispute procedure, such as a mediator, a retired judge or commissioner, or an early neutral evaluator. An ADR provider can be an employee of the court or an independent contractor.¹³See id. at (3).