Trial, Arbitration and Mediation-What Are They? Trial is held in Court before a judge. The Judge decides what laws are relevant to your case and the Jury or Judge decides what the evidence really proved. Disputes that go to trial are rarely one-sided, the opposing party must have something important to say if he or she is willing to go to trial. Trial is as technical as performing surgery so preparation is critical. Most law has been well established for contractors, but the procedures of getting to trial and proving the facts are often changed and in some counties differ. Trial requires the Lawyer and Contractor to rigorously work together to be ready to show how the evidence reveals the truth.

Mediation is negotiating with the opposition to resolve a dispute. Mediation uses a third party, called a mediator or neutral, who acts to encourage, caution and cajole both sides into a resolution that is acceptable to both sides. While a successful mediation doesn't always result in happiness, it usually give a sense of relief and predictability. Both sides are spared from having to prepare for trial or arbitration adn so save on attorney fees and litigation costs. Mediation is often required by the Courts before trial is scheduled. Mediation does not force anyone to settle their dispute, but does force the parties to realize that their dispute will be time consuming and expensive and yet not necessarily successful.

Arbitration is similar to trial but not as formal and not in court. It comes in two flavors: non-binding and binding. Non-binding arbitration may be ordered by the Court to be held before scheduling a trial. The arbitrator will decide who wins and who loses, and issue an award. Either party may reject the decision and ask the Court for a trial. Both parties are obligated by the Court to put a good faith effort in presenting their evidence to the arbitrator. Binding arbitration is often found as a term in construction contracts. There are private companies which offer both mediation and arbitration services. The parties to the dispute pay for the services rendered by the arbitrator. One advantage of arbitration is that you will probably have an arbitrator who is a senior attorney or retired judge with experience in construction-related legal disputes. Trial Judges in Court come from all legal backgrounds, so an arbitrator may come to understand your case easier and faster. Another advantage to arbitration is that it will start at a time that is mutually convenient for all involved, instead of when the Court is available. So one can plan on actually starting. The Courts are busy and since most cases settle before trial, it is not unusual for a Court to have more than one case scheduled for trial on a particular day. So arbitration takes away the uncertainty of when the proceeding starts. A disadvantage to arbitration is the expense of paying not only your lawyer, but also part of the arbitrators fee and a service fee, which can be very expensive. Another disadvantage is the lack of the right to appeal the decision. An arbitrator may not apply all or any of the laws of the State of California, and that could greatly impact how the decision is made. After the arbitration an award is issued and the winner takes the award to the court to have it confirmed, converted, into a judgment. Finally, an another arbitration opportunity is with the Contractors State License Board. The arbitration may not be an attorney. The industrial expert of the CSLB is present to testify about the construction complained of. My own experience with this kind of arbitration causes me to be relunctant about recommending it because of the limited time and formal preparation allowed for it.