Saturday, September 09, 2006

The Difference Between Mediation and Arbitration

In addition to being a mediator, I'm also an arbitrator. These two roles are only slightly similar. Each requires different training and skills and involves a completely different process. Just like tennis and racquet ball, which are somewhat similar: both involve a racquet, a similar size and shape ball and, typically, two players. But everything else is different: the way you swing the racquet, what you are supposed to do to the ball, what the ball can do to the players, as well as very different courts and rules. Just like mediation and arbitration.

Arbitration and mediation are both subsets of the Alternative Dispute Resolution family. Both are options (well, sometimes they are mandatory "options") which are intended to provide faster, private and more economical resolution to the disputes of parties without clogging up the already crowded court dockets. Both take place in informal settings - typically large conference rooms. And that's where the similarities end.

Mediation is the more informal process in which the parties are empowered to make their own decisions with the help of the mediator, who obtains key information from the parties and works to find solutions with the parties. There is no witness testimony and there is no cross-examination. There is a lot of talking, thinking and negotiating - a lot of back and forth and compromises from all sides. Other than rules of courtesy and respect, there are generally no set rules for mediation. This is nothing like a typical court proceeding or trial.

Arbitration on the other hand is very similar to a court proceeding. The arbitrator acts very much like a judge and is there to receive evidence (documents and witness testimony) and to render a decision which may or may not be binding on the parties (depending on the case). The parties have no part in making any decisions about their own case and the parties must follow specific rules and abide by the decision made for them.

Employers often require employees to sign Arbitration Agreements as a condition of employment. Enforceable arbitration agreements (not all of them are enforceable) generally require that the employee and employer submit any disputes to "binding arbitration," with each giving up his/her right to a jury trial. Employers do this in order to avoid public and costly court trials. California law allows this because "public policy" in favor of ADR, including arbitration, is currently stronger than the public policy in favor of an individual's right to a jury trial. This is a hot topic in California right now and may eventually change.

An arbitration agreement does not eliminate the possibility of mediation. Most employers and employees, when faced with the time and costs involved in arbitration, would still like to see the case mediated. Mediation remains the least expensive and most efficient manner of resolution for everyone.

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