What is Mediation?

Mediation a form of alternative dispute resolution (ADR) where parties to a dispute can resolve their conflict outside of court. Mediation is essentially a negotiation facilitated by a neutral third person, usually with special experience and expertise.  Unlike arbitration, mediation does not result in a decision about the dispute, e.g. who wins.  Mediation can be initiated by the parties or may be compelled by legislation, the courts, or by agreement of the parties.  See Texas Justice Center Rules of Mediation.

What is Arbitration?

Arbitration is a form of alternative dispute resolution (ADR) where parties to a dispute can resolve their conflict outside of court. The dispute will be decided by one or more persons (called arbitrators, or the arbitral tribunal), which renders a decision on the case based on the facts and applicable law or rules.  This decision may include an award for one or more of the parties.  An arbitration decision or award is typically legally binding on both sides and can be enforced by a court.  However, in some cases, the parties opt for the award to be “non-binding”.  By default, arbitrations at the TJC are binding arbitrations, unless agreed otherwise.  See Texas Justice Center Rules of Arbitration.

What is ADR?

ADR is the acronym for alternative dispute resolution.  By “alternative”, the term means outside of court or litigation in a valid governmental court system.  ADR includes, among other procedures, mediations, binding arbitrations, non-binding arbitrations, mini-trials, and other mechanisms to resolve disputes. 

Is Arbitration Cheaper than Litigation in Court?

Most times, yes.  This is because arbitrations involve less “discovery”, which are the procedures set up for finding facts in civil court litigation.  Discovery can include written questions, requests for documents, and depositions.  Arbitrations can have some elements of discovery, but are usually more confined by the arbitrator for the purposes of efficiency.  Arbitration tends to be more pragmatic, with the discovery and procedures tailored to the specific case, whereas court procedures and discovery are generally applicable to all cases in the court’s jurisdiction.

Can I Require Arbitration or Mediation?

Arbitration and mediation are both voluntary processes, unless a statute requires it or a court decides it is appropriate for the case and orders mediation.  However, parties to a dispute can always agree in writing to arbitrate or mediate.  Furthermore, a party can use valid arbitration or mediation clauses in its agreements in order to keep disputes involving a contract out of court.  You should always consult your lawyer before using one of these clauses in your contracts to determine if it is right for you.  You can see our standard clauses under our ADR Clauses link.  These clauses are examples only and not intended as legal advice and should not be relied on as legal advice.