By Carolyn Rosenblatt
Q: What is the difference between Arbitration and Mediation?
A: Arbitration is a process somewhat like a trial. A neutral party, the arbitrator, sits and listens to the facts and evidence presented by both sides or all sides to a dispute, considers the law, and makes a decision as to what the outcome of the dispute is going to be.
The power to decide the outcome is entirely in the hands of one person: the arbitrator. The arbitrator can take the place of judge and jury in making a decision about a conflict. The parties to the conflict can only present the facts and evidence. They do not have any choice about what the arbitrator decides. They leave the decision up to the arbitrator. Courts can use arbitrations as a way to lighten the load on the courts. Parties to a dispute can agree to arbitration, or a judge can assign a matter to arbitration. Arbitrations take place outside the courts.
Mediations also take place outside the courts, but they are not "ordered" by judges. Mediation is chosen by the parties to a dispute as a way to try to resolve it informally, through guided discussion. The mediator does not decide what is going to happen. How the dispute turns out is up to the parties, with the help of the mediator urging them, and guiding them toward settlement.
Mediation involves choices. Arbitration does not. Mediation can be creative, and can go in any direction. Arbitration goes in the direction of presenting evidence before an arbitrator, and the parties do not control what happens with the arbitrator's decision. Arbitration is usually binding if it is the result of a requirement to use arbitration, such as a contract. Mediation, on the other hand may or may not resolve a dispute. No result is forced on the parties, and no one decides how the conflict will turn out except the parties to the dispute.
Carolyn Rosenblatt is a registered nurse and attorney who has 40 years of experience. She is the author of "The Boomer's Guide to Aging Parents." Read her full biography