This research paper summarizes and compares the salient features of mediation and arbitration and comments on their relative utility in resolving American civil disputes.
When a civil dispute arises between different members of society, it may be resolved in a variety of ways. In negotiations, the parties resolve their dispute directly without the intervention of third parties. They may invoke the power of the state by initiating litigation in the civil courts. Since the 1970s, the use of various forms of alternative dispute resolution (ADR) techniques, principally arbitration and mediation, has greatly expanded. This growth has been fueled by a broadly held consensus that adversarial litigation suffers from severe deficiencies and that arbitration and mediation as well as other forms of ADR offer speedier, more cost effective and fairer and more responsive civil justice processes and outcomes. Efron said "adjudication . . . creates a structured adversary combat among the parties" which may be damaging to on-going relationships, while arbitrations and mediations "tend to promote cooperation among the parties." The most important single factor was the 'litigation explosion.' According to Kaye, between 1971 and 1992, the civil case load in the United States rose by 1110 percent, straining the capacity of the civil courts and producing "huge increases in . . . litigation costs . . . delays."
Essential features of arbitration and mediation. Except in the case of arbitrations or mediations mandated by statute, as discussed below, most arbitrations and mediations originate with a consensual referral of a case by agreement of the parties to a dispute. The American Arbitration Association (AAA) defines arbitration as "the voluntary submission of a dispute to an impartial person or persons for final and binding arbitration." If the parties agree contractually by signing a pre-dispute agreement to arbitrate (PDAA), they must take the...