Arbitration? Deposition? Mediation? What is the Real Difference?
Explanation of Arbitration, Deposition, and Mediation
Sometimes it can feel like your attorney is speaking Greek. Well, it is probably more like bad Latin. Here are three common personal injury procedures explained.
Arbitration and mediation are both forms of what the legal profession calls alternate dispute resolution. In ADR, the parties are supposed to settle their case without involving a judge or the court system.Arbitration is sometimes called “binding arbitration,” because the results are permanent. If the arbiter decides the case, the parties must act accordingly. You can appeal the decision to a higher court in some cases, but not always.Sometimes there is a panel of judges, one chosen by each party and a third neutral party. Each side presents its case, and the arbitration panel decides what should happen. They hand down a decision, and the parties are bound by it.
Atticus Finch, the lawyer from To Kill A Mockingbird, taught all aspiring lawyers that you should never ask a question you don’t know the answer too. Most attorneys like to follow that advice by finding out as much as possible during the discovery phase of litigation. During that phase, attorneys ask questions, request documents, and take depositions.
A deposition is a chance for attorneys to ask questions before the trial. The attorneys will select a witness and serve the correct paperwork. During a deposition, both parties will meet and the attorney who requested the deposition will ask the witness questions to figure out what happened during the accident and determine who is at fault.
Depositions are on the record. That means that a court reporter will record every word said by the attorneys and the witness. The witness is obligated to tell the truth. The testimony given in a deposition can and will be used as evidence at trial. Lawyers use depositions to show what happened during the accident and to impeach witnesses who tell different stories in the courtroom.
Mediation is like arbitration but not as binding. It is more about making a compromise.During a mediation, both parties and their attorneys meet in the same location, but sometimes in different rooms. The parties must hire a court-approved mediator. They are usually retired judges or well-practiced lawyers who have taken certain classes and been certified by the court system as a mediator.
The mediator will listen to both parties. If the parties are in separate rooms, the mediator will move back and forth from one room to the other. He or she will listen to each parties’ story, and then he or she will propose compromises. The parties will decide if they will choose to accept or reject the compromises. The mediator will be frank and explain to each party that he or she may not get what he or she wants.