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Arbitration and Mediation: What’s the Difference?

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The words arbitration and mediation are used a lot when it comes to different kinds of lawsuits, but particularly with personal injury lawsuits. These two dispute resolution processes have some similarities, but also, a lot of differences.

The Main Differences

The main difference between these two processes is that in arbitration, a neutral arbitrator—a person, often a retired judge or other professional—will hear your case and the evidence, and make a determination on who wins and who loses. The arbitrator’s decision is generally binding.

In mediation, the mediator does not actually make any decisions about winning and losing. The mediator’s sole job is to try to get both parties to come to a resolution in the case by “meeting in the middle.” The mediator is more of a facilitator, who makes no actual final decisions than a judge. In this way, mediation puts the power into the hands of the parties themselves, unlike arbitration, where the arbitrator makes the final decisions.

Arbitration tales a case away from a jury or the judge. Because the arbitrator makes a decision, no judge or jury are necessary. With mediation, you can opt to settle, but if you do not, you still will have the right to present your case to a judge or jury in court.

Confidentiality and Evidence

Everything said in mediation is generally confidential. That means parties can say whatever they want, without worrying that it will be used against them later on. Arbitrations are often recorded, and the transcript can be used for the purposes of an appeal.

In mediation, no actual evidence is formally used or submitted. The parties will tell each other what they propose that the evidence will show, when and if the case goes to trial. But the parties do not have to actually present any evidence at all.

At arbitration, the parties do present evidence, although the rules of evidence are much more relaxed than they would be in an actual trial. However, there are still evidentiary rules, and parties cannot just say whatever they want, or proffer what they think they could, in the future prove the way they would do in mediation.

Testimony

Your role, as the victim of the accident, is also different. Your testimony in arbitration is compelled, meaning that you have to testify, and you will have to answer the questions asked of you by the other side or by the arbitrator.

However, no questions are asked of you in mediation, and if they are, you can opt not to answer, or else, to answer in private. Your lawyer plays a much more active role advocating for you in mediation, as your case is presented through the attorney, as opposed to being presented through evidence, the way that is done in arbitration.

The Tampa personal injury attorneys at Barbas, Nuñez, Sanders, Butler & Hovsepian can help you through every stage of your personal injury case. Call us today to discuss obtaining damages after any accident. Schedule a consultation today.

Resources:

floridabar.org/the-florida-bar-journal/mediation-myths-and-urban-legends/

flcourts.org/Resources-Services/Alternative-Dispute-Resolution/About-ADR-Mediation

https://www.barbaslaw.com/the-signs-of-brain-injuries-and-the-importance-of-treatment/

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