Comparison of Dispute Resolution Options

Cost

Lowest. Mediation services (and its large group cousin, facilitation), can cost as little as a few hundred dollars, although in the low four figures is more realistic. Great way to keep the decision-making in your hands by avoiding litigation or arbitration.

Higher, because in collaborative law, you have two lawyers involved in the entire process, rather just one in mediation. A great way to keep the decision making in your hands by avoiding arbitration and mediation.

Substantially higher – maybe even higher than the litigation process in court because in addition to discovery, motions and a trial, you are paying out of pocket for the judge. But the parties, or arbitrator, can issue rules to limit the expenses.

Usually very expensive. Litigation and litigation support can cost multiples of thousands of dollars. There are few cost controls when it comes to a litigation trial.

Time for Resolution

Quickest form of alternative dispute resolution - sometimes takes only a few hours.

Slower - usually several meetings of all the lawyers and clients together, sometimes may include experts.

You set the schedule with the private judge (the “arbitrator”), but with briefs, discovery and a trial, legal arbitration can be lengthy. Usually appeals are not available.

Can be years. First discovery must be completed, motions filed, heard and decided, then a judge must be available to hear and decide the case, and then possible appeals.

Types of Cases for which process is most appropriate

Any matter in which the parties are willing to listen to the other side (directly or through the mediator) and are willing to negotiate in good faith. Cases where there is a significant imbalance between the parties (e.g. one party is at a significant educational or psychological dis-advantage) may not be appropriate for mediation.

Cases where the parties want to bargain in good faith, but one or both feel more comfortable negotiating with their lawyer by their side.

All cases except for child custody and support (although arbitrator can issue advisory opinions in those type cases).

Where the parties cannot negotiate, there is a significant power imbalance or abuse, or where a precedential decision is important, perhaps by appeals.

Confidentiality

All documents prepared for the mediation, and all matters discussed in the mediation, are confidential. Only the final agreement, if submitted to the court, is a public document.

All documents prepared for the collaborative negotiations, and all matters discussed in the sessions, are confidential. Only the final agreement, if submitted to the court, is a public document.

Depends upon the rules the parties establish. At a minimum, if the arbitrator’s decision is filed with the court for registering or enforcement, it will be available for public inspection.

Generally all pleading, attachments and judicial decisions are open to the public, although parties can request that certain medical, financial or child information be kept private. This is the least private of the processes.

Decision-maker

You and the other party.

You and the other party.

The arbitrator.

The judge.

Outcome

Mediator prepares a Memorandum of Understanding or Settlement Agreement, which when signed becomes a binding contract, and may be enforceable by a court.

The collaborative lawyers prepare a Settlement Agreement, which when signed becomes a binding contract, and may be enforceable by a court.

Arbitrator issues a final decision, which generally cannot be appealed.

Judge issues a final decision, which can be appealed.