In civil commercial litigation, MEDIATION generally looks like a settlement conference. Both sides present their position to a neutral mediator. The mediator typically separates the parties and speaks to each side separately (and often confidentially) regarding the pros and cons of their positions, evidence, and arguments. If the parties are able to reach a settlement, paperwork is drawn up to settle the case. If a settlement is not reached, the parties are free to continue to litigate the case. Mediation typically does not require that a party do anything other than participate in good faith. A party is not required to settle, and the mediator typically does not have the authority to render any kind of decision or judgment without the agreement of the parties. (Some exceptions exist.). Courts often mandate, however, that the parties participate in mediation, even though no result or settlement is required.
ARBITRATION looks more like an informal trial. Both sides present their case, including evidence and arguments, to a neutral arbitrator, who then renders a decision just as a judge would in court. In Maricopa County, Arizona, cases seeking less than $50,000 in damages are required to go to an arbitrator. The arbitrator’s decision, however, generally may be appealed to the Superior Court by either party. In some cases, where the parties have agreed by contract that a case will go to binding arbitration rather than to a court, the arbitrator’s decision may be final, with no rights of appeal. Be aware of such arbitration clauses in contracts.