Mediation Versus Arbitration

By | January 1, 2012

From the many calls I receive inquiring about my divorce mediation services, I believe many people are not really sure of what mediation really is. They may have heard of mediation but cannot quite distinguish one type of alternative dispute resolution (ADR) from another. In the civil courts, arbitration is the form of ADR most commonly offered. So then, just what is the difference between arbitration and mediation? In arbitration, the parties and their attorneys will essentially try their case before an arbitrator, who is often a retired judge. Evidence and arguments are presented just as they are in a regular case, but the trier of fact is the arbitrator instead of a jury. Lawyers often agree to non-binding arbitration as a form of alternative dispute resolution in order to try to predict how their case will go in court. It is a chance to see how a judge will look at their case.
An arbitrator will weigh evidence and hear argument and make findings of fact and a ruling. A mediator does not do that. A mediator helps people negotiate with each other to resolve their points of disagreement. The process is much more informal than what happens in a courtroom. In mediation, the parties meet with a neutral party (an attorney trained in mediation techniques) who will help them identify their divorce issues and who will facilitate the negotiations between the parties to reach a compromise of their issues. The mediator does not act as judge or jury, but only serves to help the parties resolve their issues privately without the stress and formality of the court process. If an arbitrator may be considered a private judge, then a mediator might be considered as more of a counselor who will listen to the parties and help them listen to each other.