Mediation, Arbitration and Litigation: What’s the Difference?
December 11, 2017 Read Time: 3 minutes
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Nelligan O’Brien Payne gratefully acknowledges the contribution of Matthew Drover, Student-at-Law in writing this blog post.

It is a common misconception that all legal disputes are resolved in the court-room. In fact, only a fraction end up going to litigation; most are resolved through alternative dispute resolution, such as mediation or arbitration. It all depends on the complexity of the issue and the parties involved.

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It can sometimes be unclear what the process will be for the resolution of your own issue.

So what is the difference between mediation, arbitration and litigation?

Mediation

In mediation, a neutral third-party mediator is selected by the parties to facilitate negotiations, with a view to resolving the dispute outside of the courts.  The process is voluntary, so both parties have to agree to attend mediation.

The venue is usually at the law firm of one of the party’s lawyers, and the mediator is often a lawyer. The extensive experience and education of lawyers makes them great mediators, as they already have a great breadth knowledge of the legal process and the types of disputes that can arise.

Generally, at the start of the mediation, each party signs a confidentiality agreement and makes an opening statement, which is a brief summary of that party’s position. The parties then separate into different rooms, and the mediator goes back and forth between the rooms to conduct negotiations between the parties and deliver offers from one side to another. The exact reasoning and position of each party is kept confidential by the mediator – this helps to protect any strategy or ultimate desires of the parties.

If a final agreement is reached, then “Minutes of Settlement” are drafted and a contract is signed between the parties to the agreement. This becomes binding and is the end of the dispute.

However, if an agreement is not reached, the mediation “fails” and the matter may have to proceed to court.

Arbitration

Arbitration is another form of alternative dispute resolution. It is best thought of as a pseudo-court process whereby the parties choose an arbitrator and agree that they will follow the arbitrator’s decision. That is, the decision of the arbitrator is final and binding.

Unlike mediation, the arbitrator does not keep confidences, and will use anything said, or documents received, to reach their final decision.

In arbitration, parties attend a hearing where they can call witnesses and provide documents to support their case. However, it is usually less formal and much quicker than a court proceeding.

An arbitrator in family law cannot grant a divorce or an annulment, but they can decide on custody, support, access and how to divide property. It is very common practice for an arbitrator to be a lawyer who has professional experience as a family lawyer, as a specialist in dispute resolution, or both.

The law allows a lot of choice as to the appropriate procedure of the arbitration, however the procedure must be fair to both sides. It means the process may be tailored to suit the needs of each party.

After the arbitrator has rendered his or her final decision, you can bring an application in the family court to enforce the award if necessary. You may also appeal a family arbitration award if you believe the arbitrator did not apply the law properly.

Litigation

When legal action is needed to resolve your dispute, it may be necessary to resort to the courts. Although mediation and arbitration are attractive alternatives, they may not always be the appropriate remedy.

The length, cost, and complexity of litigation disputes vary tremendously with each case. The court procedure can be a stressful, frustrating and seemingly endless process, but it may be the only way to achieve your desired results.


The litigation process involves retaining a lawyer who will act on your behalf and pursue your dispute for you, subject to your instructions. Periodic meetings with your lawyer will help facilitate the process so that you are aware at all times of the stages of your case, as well as the status of how it is proceeding. The solicitor-client relationship is imperative to the process, and is a strictly fiduciary relationship – meaning, one of trust.

Regardless of which avenue your dispute is headed, establishing a strong relationship with your lawyer will help make the process as smooth as possible, so you can rest assured that your legal needs are being met.

If you have any questions about either mediation, arbitration or litigation, contact Family Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.