Mediation and arbitration: resolving disputes without a full trial

Most legal disputes never reach a full trial. Many are resolved through alternative dispute resolution, or ADR — a set of processes that can be faster, cheaper, more private and less adversarial than court. The two best-known forms are mediation and arbitration. This guide explains how they work in general terms and how to prepare.

Mediation in brief

In mediation, a neutral third party helps the people in a dispute communicate and negotiate. The mediator does not decide who is right. Instead, they help each side understand the other’s interests, test their own assumptions, and explore options. If the parties reach agreement, it is usually written up and can become binding once signed. If they do not, they keep their right to go to court.

Mediation is widely used in family, workplace, neighbour, commercial and community disputes. Some courts require parties to attempt it before a hearing.

Arbitration in brief

Arbitration is closer to a private trial. One or more arbitrators hear evidence and arguments and issue a decision, called an award. Awards are usually binding and enforceable, and the grounds for challenging them are typically narrow. Arbitration is common in commercial contracts, international business, construction and some consumer and employment agreements. It is often required by a clause in a contract signed long before the dispute.

Comparing the options

• Control — mediation leaves the outcome to the parties; arbitration hands it to the arbitrator.
• Privacy — both are usually private, unlike most court hearings.
• Speed and cost — mediation is typically fastest; arbitration can be faster than court but is not always cheaper, since parties often pay the arbitrator.
• Relationships — mediation tends to preserve working or family relationships better.

When ADR may not fit

ADR is not right for every situation. Where there is a serious power imbalance, a history of abuse, an urgent need for a court order, or a need to set a public legal precedent, court may be more appropriate. Many mediators screen for these issues before agreeing to proceed.

Preparing for mediation

1. Understand your legal position and a realistic range of court outcomes.
2. Identify your real interests — not just your stated demands.
3. Prepare a short written summary and your key documents.
4. Think about what the other side needs to be able to say yes.
5. Ensure someone with authority to settle attends.

Preparing for arbitration

Treat arbitration seriously: read the arbitration clause and the provider’s rules, follow every procedural deadline, organise evidence as you would for court, and prepare witnesses. Because appeals are limited, the hearing may be your only real opportunity to present your case.

After an agreement is reached

A settlement is only as good as its wording. Make sure the written agreement states clearly who will do what, by when, and what happens if someone does not comply. Check whether it needs to be approved by a court, filed, or turned into a formal order to be enforceable. Arbitration awards may also need a court step before they can be enforced, particularly across borders. Keep signed copies safely and diarise any deadlines the agreement creates.

Before your consultation

Bring the contract containing any dispute resolution clause, correspondence about the dispute, any offers already made, and a short summary of what outcome would genuinely resolve the matter for you.

This is general information, not legal advice — speak to a licensed lawyer about your situation.