Monday, November 2, 2015

Arbitration vs. Mediation

In arbitration, parties make arguments and present evidence to a a neutral arbitrator who makes a decision. Often the decision is binding. And, as was widely reported  a the New York Times piece on arbitration, In Arbitration, a ‘Privatization of the Justice System’, many times arbitrations are binding and not appealable.  Many contracts that consumers enter into every day from cell phone contracts, credit card contracts to contracts for services, now include binding arbitration contracts.

Mediation on the other hand, is not binding and does not involve a decision by the mediator. Rather, in mediation, the mediator facilitates communication between the parties and helps the parties reach a decision rather than making a decision for them. In mediation, the parties stay in control. Mediation is typically voluntary so the either party can stop at any time.

Mediation clients often ask me to advise them what to do. My standard response is that it is not appropriate for me as the mediator to do that.  My job as a mediator is to make sure they have all the information they need to make an informed decision. With the information they need, clients are in the best position to determine what is fair.  Obviously it is not always as easy as that. It is the mediator's job in those case to help the parties talk and listen to each other to arrive at an agreement that they both agree is fair.