Q: What is the difference between arbitration and mediation?

A: One of the most misunderstood areas of dispute resolution is the difference between arbitration and mediation. People frequently ask whether a mediator imposes a decision on the disputing parties after hearing the facts. The answer is NO. The major difference between an arbitration proceeding and a mediation is that an arbitrator, the selected official or attorney, hears the evidence from both parties in a joint session very much like a judge in a trial. He has the power to exclude evidence. After hearing the facts, he may invite the parties or their attorneys to make arguments in support of their case. He concludes the hearing and makes a decision that becomes binding on the parties and can be enforced in a court of law. His decision is very difficult to overturn - there is no appeal.

On the other hand, a mediator has no power to impose a decision on the parties. The mediator's role is that of a wise neutral facilitator who will guide the parties to a resolution of their dispute through negotiations. The proceedings usually, but do not always, start in a joint session where all the parties and their attorneys have the right to tell their side of the case to each other and the mediator. Then the mediator can meet with each party in a separate private and confidential meeting to discuss the case from the perspective of each party, weighing both the good and the bad features. The experienced mediator will not try to impose his judgment on the parties but will help them evaluate all of the risks of going to trial and will try to find a common ground on which both parties can agree to settle their dispute and thereby end the lawsuit without going to trial.

The mediation process becomes binding only when both parties sign a written agreement to end the case. This saves all the parties the expense of trial, the uncertainty of outcome, and the emotional turmoil of continuing a litigated dispute. Although some parties say they are not happy about having to settle their case for less than they thought it was worth, when they consider the risk of an uncertain outcome in every case, they generally express satisfaction that they settled the dispute rather than going to trial.

Call or email Mr. Sankary to explain more about the difference between arbitration and mediation.