Mediation & Arbitration
Similarities & Differences
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Mediation
· Expanded or accelerated negotiation
· No settlement imposed upon parties – Mediator has no power to decide
· Parties retain control of outcome
· Role of mediator is to aid in identification of issues, clarify interests, explore alternatives, generate options, facilitate negotiations
· Parties able to vent feelings, tell story, engage in creative problem-solving
· Joint & private meetings
· Decision based on perceptions of parties, strategies and timing
· Result is often a mutually satisfactory resolution – relationship (if any) may be maintained or created
· Flexible – can resolve entire matter or portion
· Low cost and cost effective
· Private & Confidential
· Uses professional neutral
· May be accessed independently at time of dispute, by contract provision, or by order of court. |
Arbitration
· Adjudication
· Final & (usually)binding decision – Arbitrator is given power to decide
· Parties relinquish control of outcome
· Role of arbitrator is to listen to facts and evidence, and render an award
· Parties may present case, testify under oath
· Evidentiary hearings
· Decision based on facts, evidence, and law – the record
· Result is a win/lose award – valuable where outside decision-making is desired or needed
· Structured – parties generally decide what issues are to be heard – unless contractual
· Often more expensive than mediation but less than traditional litigation
· Private
· Uses professional neutral
· May be accessed independently at time of dispute, by contract provision, or by order of court. |
