subject: What Is The Difference Between And Arbitrator And A Mediator? [print this page] If you've gotten this far than you are probably already familiar with the term "alternative dispute resolution" or ADR. Whereas the trial 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- Most comparable to trial court, the arbitration is very competitive in nature. In it's implementation arbitration resembles the process of trail court in the sense that both sides present their case, and then the arbitrator decides on one party with which to declare the winner.
I like to compare arbitration to a boxing match where at the end of the competition the ref declares one of the fighters the winner. The arbitrator is like the ref for the purposes of the parable.
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.
I like to compare a mediator to a symphony director. Just like the director is not the one making the music the mediator doesn't actually make the decisions. His or her job is simply to facilitate everyone staying in sync.
So if you are interested in pursuing some type of alternative dispute resolution service the above article should get you on your way to deciding whether to choose an arbitrator or mediation. Basically, if you and your opposing party are interested in making things work cooperatively than mediation may work well for you, otherwise it's arbitration all the way.
