The lines between mediation and arbitration continue to blur. Although these practices are fundamentally different, they are both forms resolving disputes through alternative methods to litigation. Understanding the differences between these two practices can help you in which form of ADR (alternative dispute resolution) is right for your situation.
Arbitration provides a simpler, quicker method for solving a dispute that would otherwise be settled through litigation. Arguments from each side of the dispute are heard considered by a neutral third party called an arbitrator. He or she then levies a ruling which is usually in favor of one party or the other. While some cases provide the option of continuing on to litigation if the outcome is not satisfactory to one or both parties, most arbitration cases, especially those mandated in a contract, are usually binding.
Mediation, too, is simpler and quicker than litigation, but that is where the similarities end. With the assistance of a neutral third party, disputing parties can create their own resolution through mediation. However, unlike arbitration, other than helping the parties determine if the outcome is legal, the mediator has no say in the final agreement. Mediators encourage parties to find common ground by facilitating respectful communication and discussion in a less formal setting. Mediation is only successful if both sides of a dispute are satisfied with the outcome and is not binding until this occurs.
There are three main fundamental differences between mediation and arbitration.
First, they differ in the atmosphere and goals they foster. Arbitration creates an adversarial tone between the parties, where each side wants to win and cause their opponent to lose. On the other hand, mediation sets a cooperative mood. By not focusing on winning, parties get to focus instead on reaching a mutually satisfactory resolution.
The role of the neutral third-party is also different. In arbitration, the third-party is responsible for levying the final outcome and the parties may or may not be required to accept that outcome as legally binding. The neutral guides the parties through the entire process of resolving the issues at hand, but is not in control of the final outcome.
Finally, when picking a third party to help resolve disputes, the skills and expertise needed vary between the two methods. In arbitration, expertise and experience in the legal field the issue is in proves to be the most important aspect. In mediation, parties should place more value and emphasis in finding a mediator that is not only expert in communication, but also can create and facilitate creative approaches in conflict resolution. Though it is often not necessary, sometimes knowledge about the subject matter is also helpful.
If you are contemplating arbitration to resolve a dispute, John S. Preston can help you determine the best course of action. As an attorney and mediation professional who has practiced law for over 35 years in California, John can serve you as an expert arbitrator and mediator. Call 510-763-9131 or go to http://www.johnprestonmediation.com for more information.