What is the Difference between and Arbitrator and a Mediator?
Friday, September 30th, 2011If you’ve gotten this far than you are probably already familiar with the term “alternative dispute resolution” or ADR. Whereas the trail court system is the classic way to settle disputes in a legal and dignified manner, there is another whole framework which allows parties to come to a legal, and enforceable solution but in an “alternative” way. ADR is an alternative to the courtroom and an alternative to many of the hassles and costs surrounding the trial court process. The two main disciplines of ADR are arbitration and mediation, and the enforcers are called “arbitrator” and “mediator” respectively.
Let’s discuss the elements of arbitration and mediation so that we can make some distinction as to which one is most suitable for specific cases.
Arbitration- If you are looking for all to benefits of trial court for only a fraction of the price and time investment, than an arbitrator might be the best fit for you. Much like court, in an arbitration hearing, both sides present their cases before the arbitrator. When all is said and done, the arbitrator makes a decision as to who the winner of the case is, and orders that the looser to compensate the winner. As you can see, the arbitrator serves in place of a trial court judge.
Arbitration is like the “diet” version of trial court. If you want to compare arbitration to something it would make a lot of sense to see it as a boxing match. Both parties go into the ring to ‘duke it out’ until the ref declares a winner. So to in an arbitrated case both parties go into the arbitration hearing to compete and not to compromise. Arbitration, although being less formal than trial court, is still competitive in the same sense as trial court.
Mediation- While arbitration is a competitive, dog-eat-dog form of ADR, mediation is much more cooperative in nature. During the course a mediated session the two parties meet with the mediator, not as competitor, rather as partners. The job of the mediator is to facilitate a cooperative discussion and decision between the opposing parties. And at the end of the hearing the mediator does not make any decision as to who is the winner. Rather, the two parties work together with the mediator to discuss and decide upon solutions which will be acceptable to everyone involved. Nobody is forced into a situation that they don’t like, and at the end of the mediated session each party will sign the decision only if they want to sign.
As opposed to arbitration, which we compared above to a boxing match, mediation is more comparable to a symphony where everyone works together to make beautiful music of an agreement together. For the purposes of the comparison, the mediator is similar to the symphony conductor.
Now that we have made it this far, let’s consider which dispute resolution forum is best suitable to your case. Basically, if you can imagine yourself working with the other party in your case and coming to a reasonable, and acceptable agreement, then mediation may be the best option for you. But if one of you are more interested in proving a point, or unwilling to compromise, then arbitration or trial court may be your only direction worth pursuing.
If you are considering using ADR services like an arbitrator or mediator there are some traits and skills which are important to look for, such as having experiance and expertise in the subject of your case.