What Are the Similarities and Differences of Mediation and Arbitration in Las Vegas, Nevada?

Clients sometimes ask what are the differences between mediation and arbitration. So, today we will discuss the similarities and contrasts between the two methods of alternative dispute resolution. Both are a means to resolve a civil legal dispute without the need to have a jury to decide your fate.

Mediation is an informal process, where the parties meet with an independent third party, called the mediator. The mediator attempts to bring the parties together to resolve their disputes. By contrast, arbitration is a more formal process, akin to a mini trial, where the parties present evidence and an arbitrator renders a decision. Since arbitration is more formal, the arbitrator issues a formal written decision concerning his findings. In personal injury cases, such as car accidents and slip and falls, mediation and arbitration are regularly used by your personal injury attorney to resolve disputes. Since they are so common, each will be discussed more in depth.

Mediation is something that the parties usually voluntarily enter to resolve their disputes.  (Some courts have mandatory mediation prior to proceeding in court, but that is another topic for discussion.) In most cases, the parties pick a mutually agreeable mediator. The parties’ attorneys then prepare a confidential mediation brief. Prior to the start of mediation, the confidential brief is then read by the mediator. This way, the mediator knows each parties’ position and what they are looking to get out of mediation.

Once the date and time for the mediation is scheduled, the mediator meets with both parties in person. There is usually a joint session, where the mediator meets with all parties and their attorneys, to give an overview of the process and the mediator’s qualifications. The mediator will then ask one of the participants and their attorney to sit in a separate room, so the mediation can speak privately and candidly with the other party and their attorney. 
 
By meeting with each party and their attorney separately, the mediator will attempt to bring the parties together towards a resolution. In a mediation, the mediator will usually go back and forth many times before an agreement is reached. If an agreement is reached, the parties will prepare a very simple agreement outlining the basics of the agreement, such as what the settlement amount is, and that it is inclusive of all fees and court costs. The parties will then prepare a very formal agreement and the case will be complete. 

When it comes to arbitration, there are two types of arbitration, binding and non-binding.   Today, will be discussing binding arbitration. The Southern Nevada Court system has a mandatory, non-binding arbitration system, for certain personal injury cases. Nevada’s non-binding arbitration program is an entire discussion itself and therefore will not be discussed today. Binding arbitration usually happens when there is contract the parties have signed, where they agreed to submit to arbitration instead of a costly litigation, to resolve their disputes. Additionally, the parties can simply decide and agree that they want an arbitrator to decide their dispute, which is very common in personal injury cases. 

In both instances, the parties will pick an arbitrator to resolve their disputes. Sometimes, the parties have a three arbitrator panel. However, one arbitrator is usually enough, as long as that arbitrator is neutral and unbiased. Since both parties have to agree on an arbitrator, the arbitrator will be neutral, thus foregoing the need for a three arbitrator panel.

In arbitration, the parties will submit non-confidential briefs to the arbitrator, outlining the facts of the case and the applicable law. Since the legal briefs are non-confidential, each side must provide the opposing side a copy of their briefs. The parties will then attend the arbitration, which is usually held at the arbitrator’s office conference room. Here, the parties will be present their evidence, which the arbitrator will listen to before rendering a formal decision. If you are the injured party, that means you will be able to tell the arbitrator what happened in the accident, your treatment and the injuries you sustained. Once both parties have presented their case in a mini-trial, the arbitration will be over. In the next weeks, the arbitrator will issue a written decision, which will be mailed to the parties’ attorneys. The case itself will be over, with the arbitrator’s decision binding on the parties.

In summary, mediations and arbitrations, each have their benefits and risks. In mediation, if the parties cannot come to an agreement, then the case is left unresolved. However, if an agreement has been reached in mediation, the parties have controlled the outcome. In arbitration, the arbitrator can issue a decision, which one side may be less than happy with as a result. Yet, in arbitration, the parties have finality. Both are part of your personal injury attorney’s tool box, to be used to fit your particular case. 

Next time, we will discuss what happens after you complete your medical treatment.