In our last post, we began looking at some of the differences between mediation and arbitration, two important forms of alternative dispute resolution. As we pointed out last time, arbitration is similar to a court trial, while mediation doesn’t typically seek to imitate the litigation process. Though the form medication takes depends on the style used, the aim of mediation is not to hand down decisions as a judge would.
Rather, mediation has the general goal of assisting parties in coming up with a mutually satisfactory resolution to their dispute. This can be accomplished in any number of ways. Mediation doesn’t aim to hand down a decision, as arbitration does. Mediation, then, should be looked at as seeking to reach an agreement whereas arbitration aims at reaching a binding decision.
There are a number of other differences between mediation and arbitration, including:
- Mediation is best seen as a way to avoid litigation, whereas arbitration is more of a replacement to litigation
- Mediation usually only involves one mediator, whereas arbitration can involve either a single arbitrator or a panel
- The role of the mediator is to facilitate negotiation, whereas the arbitrator’s role is to deliver a decision
- Agreements to mediate usually only require the parties to make a good faith effort to reach a settlement agreement whereas agreements to arbitrate usually require parties to accept the decision as if it were a court’s decision
There is more that could be said about the differences between mediation and arbitration, particularly with respect to confidentiality and enforcement of mediation agreements and arbitration decisions. In a future post, we’ll take a look at these issues.