Two different processes

One word of warning. Missouri courts also run programs they call “arbitration” in which the decision is not binding. It is only a guide to help you settle. The same word can mean very different things.

When the judge sends you to mediation

• Missouri judges can send civil cases to mediation or other settlement programs.
• Your lawyer must tell you these programs are available.
• If both sides agree to mediate, the judge must order it. The judge can also order it on request or on the judge’s own.
• If the lawyers believe mediation truly has no chance of working, they can opt out in writing in time.
• Mediators must have at least 16 hours of training.
• When mediation ends, the court is told only whether the case settled, not what was said.

What you say in mediation stays private

If everyone agrees in writing to mediate, what is said during mediation is confidential. It cannot be used as evidence later. The mediator cannot be forced to testify about it.

This is what lets both sides speak openly. So make sure the written agreement to mediate is signed before the meeting starts.

When an arbitration clause binds you

Missouri courts enforce written agreements to arbitrate, with some exceptions. The Missouri law does not cover insurance policies. It also does not cover take-it-or-leave-it contracts where one side had no real chance to bargain. Contracts covered by the Missouri law must say, in capital letters near the signatures, that they include binding arbitration.

A federal law also enforces arbitration clauses in contracts that involve business across state lines. Which law applies is often the first thing the two sides fight about.

If the other side refuses to arbitrate, you can ask the court to order it. The court case then pauses. If a judge refuses to order arbitration, that decision can be appealed right away.

After the decision: confirm it or challenge it

A court will confirm an arbitration award unless someone challenges it in time. The reasons to throw out an award are narrow:

• the award was won by bribery, fraud or other dishonest means;
• a neutral arbitrator was clearly biased, or acted improperly and hurt one side;
• the arbitrators went beyond their power;
• the arbitrators unfairly refused to delay the hearing or to hear important evidence;
• there was never an agreement to arbitrate.

A court will not throw out an award just because it thinks the arbitrator got it wrong. So most of the work in arbitration happens before and during the hearing.

Which one is right for you

Mediation costs little, and you risk only your time. It is worth trying in most cases once each side knows enough to value the claim.

With arbitration, you give up a jury and most appeal rights. In return, you get privacy and sometimes speed. You should decide whether to agree to arbitration when you sign the contract. See contract drafting and review.

Before a mediation, Harjot Singh Padda, JD, prepares a written summary of your claims, your evidence and a realistic range for settlement. He also prepares you for the day itself.

Common questions

Related reading

• Civil litigation overview
• Contract drafting and review
• Business litigation
• Civil appeals