Choosing the Right ADR Pathway

At a Glance

Every dispute is different.

The most appropriate ADR process depends on the parties’ objectives, the governing agreement, and the unique circumstances of the dispute.

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Feature	Mediation	Arbitration	Neutral Evaluation
Primary Purpose	Help the parties reach a voluntary settlement	Obtain a final decision from a neutral arbitrator	Receive an independent assessment of the dispute, including the facts, evidence, witness credibility, or legal arguments
Who Decides the Outcome?	The parties	The arbitrator	The evaluator provides an assessment to one or both parties, as requested
Is the Result Binding?	Only if the parties enter into an enforceable settlement agreement	Generally yes, subject to limited judicial review	No
Process	Collaborative negotiation assisted by a mediator	Adjudicative process involving evidence and legal arguments	Evaluative review of selected facts, evidence, witnesses, and legal issues
Control Over Outcome	High	Limited once the matter is submitted for decision	High
Typical Role of the Neutral	Facilitates communication, negotiation, and settlement	Manages the proceeding, evaluates the evidence, and issues an award	Identifies strengths, weaknesses, risks, and issues likely to influence the dispute
Privacy & Confidentiality	Generally private; confidentiality depends on applicable law, agreements, and mediation rules	Hearings are generally not open to the public; privacy and confidentiality depend on the parties’ agreement, applicable procedural rules, and governing law	Usually conducted confidentially by agreement, subject to applicable law
Procedural Flexibility	High	Often greater than court litigation, but governed by the parties’ agreement and applicable procedural rules	High
Opportunity for Creative Solutions	High	Usually limited to relief within the arbitrator’s authority	High, because the parties remain free to negotiate
Finality	Depends on whether settlement is reached	High	Low unless followed by settlement or another binding process
Best Suited For	Parties willing to negotiate and retain control	Parties seeking a neutral to decide the dispute	Parties seeking an objective assessment before making strategic or settlement decisions

Mediation

A Collaborative Approach to Informed Decision-Making

Mediation is a facilitated negotiation in which a neutral mediator helps the parties communicate, evaluate their options, and explore settlement. The mediator does not impose an outcome. The parties decide whether to settle and on what terms.

Mediation may be the right fit when:

The parties want to retain control over the outcome
There is an opportunity for negotiated settlement
Privacy, business continuity, or professional relationships matter
The parties want to explore solutions that may not be available in court
The dispute is at an impasse and productive communication has broken down
The parties want to resolve some or all issues without the burden of a trial or arbitration

Potential Advantages

Greater control over timing and outcome
Flexible, business-focused solutions
Opportunity to address legal and nonlegal concerns
Reduced expense and disruption compared with prolonged litigation
Ability to preserve relationships where appropriate
Settlement discussions that may be protected by applicable law, agreements, and mediation rules

An Important Consideration

Mediation does not guarantee settlement. The parties, not the mediator, determine the outcome.

Arbitration

A Balanced Approach to Binding Decisions

Arbitration generally offers a more private forum than court litigation. The parties present evidence and legal arguments to a neutral arbitrator, who issues an award that is typically binding.

Arbitration may be the right fit when:

The parties need a final decision.
An arbitration agreement requires disputes to be arbitrated
The parties want to select a neutral with relevant experience
A more private forum is preferable to public court proceedings
The parties want greater control over scheduling or procedure than a court may provide
Negotiated resolution is not feasible or has been unsuccessful

Potential Advantages

A final, generally binding decision
Greater procedural and scheduling flexibility
Opportunity to select the decision-maker
A more private forum
Potentially more limited discovery and a more focused hearing process

An Important Consideration

Arbitration awards are generally binding and are subject to limited judicial review; speak to your attorney for clarity about the binding effect of an award in your arbitration.
Arbitration hearings are generally not open to the public. However, privacy and confidentiality are not absolute. Speak to your attorney for clarity about confidentiality in your arbitration.

Neutral Evaluation

Objective Analysis Before the Next Decision

Neutral evaluation gives parties and counsel an independent assessment of selected legal, factual, evidentiary, and practical issues. The evaluator does not decide the dispute or impose a resolution.

Arbitration may be the right fit when:

The parties have sharply different views of the case
Settlement discussions have stalled because of disagreement over value or risk
Counsel wants an independent assessment before mediation, discovery, motion practice, trial, or appeal
A business or individual needs a clearer understanding of potential exposure
The parties want to test legal theories, evidence, damages, or litigation strategy
A neutral assessment may help narrow the issues or create a foundation for negotiation

Potential Advantages

Objective analysis without surrendering control
Early identification of important strengths and vulnerabilities
Better-informed strategic and settlement decisions
Opportunity to narrow issues and focus discovery
Flexible scope and format
Can be used independently or alongside mediation, litigation, or arbitration

An Important Consideration

A neutral evaluation is advisory. It may clarify risk and improve decision-making, but it does not itself resolve the dispute.

Which Process Should You Choose?

Do you want to control the outcome?

If yes, mediation or neutral evaluation may be preferable. In arbitration, the parties generally transfer decision-making authority to the arbitrator.

Do you need a final and enforceable decision?

Binding arbitration may be appropriate when the parties want a final, enforceable decision or settlement is unlikely.

Are the parties willing to negotiate?

Mediation works best when the parties are prepared to participate meaningfully, even if they begin far apart.

Is disagreement over case value preventing settlement?

Neutral evaluation may help the parties reassess their positions and establish a more realistic basis for negotiation.

Do you need creative or business-oriented solutions?

Mediation generally offers the greatest flexibility to address payment structures, business relationships, transitions, confidentiality provisions, operational changes, or other terms beyond conventional legal remedies.

How important are appellate rights?

Binding arbitration generally provides more limited judicial review than court litigation. Parties should understand that tradeoff before choosing arbitration.

Is preserving a relationship important?

Mediation may be particularly useful when the parties expect to continue working together or share ongoing business, employment, personal, or professional interests.

Do you want to control the outcome?

If yes, mediation or neutral evaluation may be preferable. In arbitration, the parties generally transfer decision-making authority to the arbitrator.

Can ADR Processes Be Combined?

Yes. The processes are not mutually exclusive.

Parties may use neutral evaluation before mediation, mediate before or during litigation or arbitration, or agree to staged arbitration procedures designed to narrow issues, reduce cost, or encourage settlement. The appropriate structure depends on the dispute, the governing agreement, and the parties’ objectives.

Choosing the Right ADR Process

There is no universally superior process. Mediation, arbitration, and neutral evaluation each serve a different purpose.

Choose Mediation
if you want to retain control over the outcome and explore a negotiated resolution.

Choose Arbitration
if you want a neutral decision-maker to issue a final, generally binding award.

Choose Neutral Evaluation
if you want an objective assessment of the strengths, weaknesses, and likely trajectory of your case before determining your next step.

The most effective ADR process is the one best suited to the dispute’s legal issues, commercial realities, procedural posture, and the parties’ objectives.