Mediation or Arbitration
Confusion continues about mediation compared to arbitration. The processes are very different.
Parties come to mediation to achieve settlement. A mediator helps people negotiate to that end. I spend most of a mediation with parties in separate confidential sessions. I help them define issues, understand alternatives, and compose offers and demands. I convey information between parties in a way that will promote settlement. A mediator has no power to order anyone to do anything. With the mediator’s help, parties come to an agreement. Sometimes a mediated settlement includes promises outside the scope of the dispute originally submitted for mediation and it is compromise on one of these outside issues that settles the case. A mediation can end without settlement, and the case goes on.
Parties come to arbitration for an adversarial proceeding where a professional neutral will decide who is right. An arbitrator is a private judge. Arbitration is subject to many rules. Proceedings are similar to a trial with witness testimony and submission of evidence limited to the defined dispute. It would be improper for an arbitrator to meet privately with a party or to suggest ideas. At the conclusion of an arbitration, the arbitrator declares a winner; the ruling is called an “award.” If the parties, individually or through a group such as a union, have submitted the dispute to binding arbitration, the arbitrator’s award is the end of the case.
Different skills for different processes
Mediation and arbitration require different sets of skills. Mediators encourage collaboration. An arbitration is an adversary proceeding—no collaboration. Mediators may suggest a creative solution. Arbitrators do not suggest anything; it is up to each party to present their case and for the arbitrator to judge it. By definition, arbitrators are judgmental; mediators are not.
Some professional neutrals can successfully switch hats, conducting both mediations and arbitrations. But participants often report that some mediators, particularly those with judicial experience, are, well, judgmental. When choosing a mediator or arbitrator parties should be cognizant of the differences in the processes and choose the neutral best suited for the task.