difference between litigation and arbitration

What is the Difference Between Litigation and Arbitration?

Humans will be humans. They will have differences of opinion on various matters, some of which may escalate into significant disputes. How can we quickly resolve such issues? Prevention is better, but that may only sometimes be possible.

In legal dispute resolution, the difference between litigation and arbitration as two prominent methods stands out. In this article, we will embark on a journey to unravel the nuances of arbitration and litigation, shedding light on the critical differences between the two and the significance of choosing the right path. Join us as we explore the art of dispute resolution and the pivotal decisions that shape the course of legal proceedings.


Litigation is the process of taking a case to court, often seen as a last resort due to time and cost. These can be civil litigation or criminal litigation. Courts prefer parties to resolve disputes themselves. Before legal action, parties usually negotiate, and the claimant sends a letter of claim. The settlement of disputes involves issuing a claim form, a response from the defendant, court hearings for directions, negotiation opportunities, the exchange of disclosure and witness statements, and trial preparation. At trial, each party presents their legal issues and witnesses, and the judge issues a written judgment with an order for costs.


Arbitration is an alternative dispute resolution process where an impartial arbitrator or panel reviews evidence and arguments to make a binding decision, known as the arbitration award. It offers advantages such as confidentiality, efficiency, and a tailored resolution process, making it quicker and more cost-effective than court proceedings.

Here's a summary of the different types of arbitration:

Binding Arbitration: Parties agree to settle through a private proceeding, with the arbitrator making a final, legally binding decision that both parties must adhere to, waiving their right to a trial.

Non-binding Arbitration: The arbitrator's decision is advisory and not legally binding, allowing parties to reject the award and explore alternative solutions.

Domestic Arbitration: Dispute resolution within a single country, with binding decisions based on the agreed arbitration agreement.

International Arbitration: Resolution method for cross-border conflicts using arbitrators instead of national courts, providing a private and neutral forum for resolution.

Institutional Arbitration: Overseen by specialized organizations with predefined rules and support for the process, offering a structured and well-regulated framework.

Ad Hoc Arbitration: Parties create their arbitration procedures, choose arbitrators, and independently manage the process without following institutional arbitration rules or involving a specific arbitral institution, providing a customized resolution framework

Difference Between Litigation and Arbitration

Here are some key differences between litigation and arbitration:

Time Taken: The arbitration process is generally quicker because it is streamlined, while litigation can be time-consuming with lengthy pre-trial discovery and appeals processes.

Costs: Arbitration tends to be less expensive, involving fewer procedural hurdles, while litigation can be more costly due to extensive pre-trial processes, involvement of legal professionals, and potential appeals.

Process: Arbitration involves limited discovery and lacks pre-trial depositions, making the process more efficient. At the same time, litigation includes more elaborate processes such as depositions and documentation authentication.

Access: Arbitration provides easier access with fewer procedural hurdles, while litigation may have more formalities, potentially creating barriers to access for some parties.

Confidentiality: Arbitration offers more privacy to the parties involved, while litigation may involve public court records, compromising confidentiality to some extent.

Appeal: Arbitration has limited options for appeal, providing finality to decisions, while litigation generally allows for more extensive appeals, potentially prolonging the resolution.

Enforcement: Awards in arbitration are enforceable in court, ensuring compliance, while court orders in litigation are directly enforceable.

Relationships: Arbitration may preserve relationships due to its less adversarial nature, while litigation can strain relationships as it involves a more confrontational approach.

Environmental Factor: Arbitration can be more environmentally friendly as it typically involves fewer hearings and paperwork, while litigation, as a legal process, may have a more significant environmental impact due to court hearings and extensive documentation.

Choosing Between Litigation and Arbitration: Key Factors

When deciding between litigation and arbitration, a wide range of factors should be considered to align the chosen dispute resolution method with your specific case and goals:

Formality and Procedure: Litigation follows formal court procedures and strict rules, while arbitration is generally less formal and flexible, allowing parties to exert more influence in the process. Arbitration offers more flexibility than litigation in scheduling, location, and choice of arbitrators.

Cost Implications: Consider the costs of each approach. Litigation can be expensive due to court fees and lengthy legal processes, while arbitration may involve more moderate fees for location, arbitrator, and attorney expenses. Litigation tends to incur higher costs than arbitration, attributed to court fees, attorney expenses, and expert witness fees. Conversely, arbitration is usually less costly.

Speed of Resolution: Arbitration hearings frequently lead to quicker resolutions because of their flexibility, while litigation may take longer due to court schedules and formal procedures. Arbitration can be faster than litigation, as it generally has fewer formalities and limited discovery.

Privacy: Litigation is typically public, whereas arbitration is generally private and confidential.

Recourse: Arbitration decisions are typically conclusive and binding, offering limited avenues for appeal. Conversely, litigation decisions can be appealed in higher courts.

Expertise: Adjudication of disputes enables the parties to select an arbitrator with specialized knowledge in the pertinent area of law, which can be advantageous in intricate disputes.

Ultimately, the choice between litigation and arbitration will depend on the specific circumstances of your dispute. It's important to carefully consider each option's pros and cons before deciding.

Examples of Employment Matters Well-Suited for Arbitration

Arbitration is a valuable tool for resolving disputes that require privacy, efficiency, and flexibility since they involve straightforward rules of evidence. Here are some examples of employment matters that are well-suited for arbitration:

Discrimination claims can be resolved with arbitration, as it allows the parties to choose an arbitrator with expertise in the relevant area of law and can be faster and less expensive than litigation.

Wage and hour disputes can be resolved amicably with arbitration. This can benefit both parties since it saves both money and time.

Breach of contract claims can be effectively resolved with arbitration proceedings. It allows the parties to choose an arbitrator with expertise in the relevant area of law, and it can be faster and less expensive than litigation (for example, business disputes).

Whistleblower claims can often be resolved through arbitration clauses since they allow the parties to choose an arbitrator with expertise in the relevant area of law. It can be quicker and less expensive than a litigation process.

Disputes over employee benefits, such as health insurance or retirement plans, can often be resolved through arbitration. This is because arbitration can be faster and less expensive than litigation; it allows the parties to choose an arbitrator with expertise in the relevant area of law.


In a dispute between parties, a resolution can be made by assessing arbitration vs litigation and understanding the difference between litigation and arbitration closely. Concerned parties can decide between arbitration and litigation concerning the specific case and their goals.

By getting into the nuances of both types - resolution of disputes - we have given direction to the options you can follow. We hope you will benefit from the details and prepare yourself for an unexpected turn of events.


What are some examples of disputes that are well-suited for arbitration?

Arbitration is suitable for resolving commercial disputes (business-related, like contract issues), employment (wrongful termination, discrimination), consumer (warranties or defective products), intellectual property (patents, trademarks, and copyrights), international (parties from different countries), and family disputes (property, financial, and child-related) due to its privacy, efficiency, and flexibility.

What are some examples of disputes that are not well-suited for arbitration?

Arbitration is not the preferred choice for criminal matters (offences against the state), public policy issues (public policy implications or matters involving the public interest), family law disputes (child custody, adoption, or divorce), third-party rights (third parties who have not consented to arbitration), complex intellectual property disputes (specialized expertise is required), and class action lawsuits (involving a large group of individuals and requiring procedural mechanisms).

What are non-arbitrable disputes in India?

Certain disputes in India are considered non-arbitrable, meaning they cannot be resolved through arbitration. This has implications for the enforceability of arbitral awards and encompasses disputes that cannot be settled through arbitration. Non-arbitrability of disputes serves as grounds for setting aside arbitral awards under specific sections of the Arbitration Act. These include criminal offences, matrimonial disputes and guardianship matters; insolvency and winding up matters; testamentary matters; eviction or tenancy matters; trust deed and the Trust Act matters; patent, trademarks, and copyright disputes; anti-trust/competition law issues; and disputes arising from inalienable sovereign and public interest functions of the state.

Usha Menon

With over 25 years of experience as an architect, urban designer, and green building consultant, Usha has been designing sustainable, and visionary spaces. She has published a book, has been actively blogging, and is on social media. Now, her journey is transitioning to full-time writing. Her words will continue to craft stories, not brick and mortar, but in the realm of ideas, fostering a better, more inspired world.

1 Comment

Leave a Reply

Your email address will not be published.

Latest from Brown News