Art Lieberman, Ph.D.

What's the difference between mediation and arbitration?
How long will it take?
What happens after an agreement is reached?
What is a Memorandum of Understanding?
Do we have to use attorneys?
Do we have to appear in court?

What's the difference between mediation and arbitration?

A mediator helps the parties make their decisions.  A mediator might offer creative alternatives to help you decide, but he or she does not make any decisions for you.

An arbitrator, on the other hand, does make decisions for you.  Each of you will discuss your issues, and then the arbitrator will present what he or she feels is the best solution.  Usually, the parties agree ahead of time that they will be bound to the decisions of the arbitrator.

How long will it take?

The amount of time varies widely, from case to case.  Most commercial or civil mediations are concluded in 3 to 6 hours.  Some, though, may require meeting for few hours on each of several days.

In mediation, the pace is set by you. The amount of time depends upon (1) the complexity of your situation, (2) how prepared each of you is for making decisions, (3) how willing both of you are to make compromises, (4) how well you communicate with one another.

A pure arbitration takes less time than a mediation.  However, I often use a combination: med/arb.  I try to help the parties come to an agreement on their own (mediation), and if that fails then I make a binding decision (arbitration).  The parties must agree ahead of time whether I am being asked to mediation, arbitrate, or med/arb.

What happens after an agreement is reached?

For a mediation, you can ask me to write up the terms that the two parties arrived at. Or, you can ask me to write nothing up. The two of you came to an agreement - you probably don't need me to write anything for you.

For an arbitration, I usually make my decision within 48 hours. My decision is mailed to each party and their attorneys.

What is a Memorandum of Understanding?

At the completion of the mediation, if you request it, I will prepare a document that details my understanding of what the two of you agreed upon.  This is called a Memorandum of Understanding.  It is not a contract, even though it might look like one.  By state law, a mediator cannot write a contract for you.  So, if you want, you would give the Memorandum of Understanding to your attorney, who would turn the Memorandum into a binding contract.

Do we have to use attorneys?

It depends on the case. Two parties are allowed to make agreements on their own. If a formal, legally binding contract is needed, then the help of an attorney should be sought in order to put the agreement into final form. Or, if legal issues are involved, then certainly the inputs of an attorney are needed.

Both of you cannot share an attorney.  An attorney is not allowed to represent both sides of a case.

It is up to the parties to decide whether their attorneys will attend the mediation/arbitration.

Do we have to appear in court?

If a law suit is not filed, then you do not go to court. Again, you are allowed to come to an agreement, and you are allowed to create a contract, without the use of the courts. If the case is filed, then your attorneys will help you determine if a court appearance is necessary.