Are you wondering whether to opt for mediation or arbitration? Do you want to know the difference between the two? Then, you need to read on as this post looks at what makes mediation and arbitration different. Many people confuse mediation and arbitration as being the same thing. However, that is far from the truth. Both mediation and arbitration have their own pros and cons. It is important to know about these differences before you decide which option to seek. Moreover, it is important to keep in mind that mediation is not for everyone and the same goes for arbitration. Mediation and arbitration are the two most common alternative dispute resolution processes outside litigation.
What Is Mediation?
Mediation is a process wherein a third neutral party is involved in order to encourage and facilitate the parties involved in a dispute to reach a resolution. The mediator is a professional who acts as the facilitator to the parties. Mediation takes less time than litigation to reach an outcome and tends to be less costly.
What Is Arbitration?
Arbitration is another popular method for resolving disputes. The arbitrator acts as the judge in an arbitration. Thus, the arbitrator gets to make the final decision. Generally, both mediators and arbitrators have backgrounds as psychologists, social workers, and lawyers. The reason why people hire a mediator or an arbitrator is because of their familiarity to such subject matter.
According to research, parties that mediate to reach an agreement tend to have a greater desire to stick to it. One of the main reasons behind this is the fact that the parties involved in the dispute get to actively participate throughout the process. Thus, they realize that they have greater control over the outcome. This is what makes mediation different from arbitration wherein the parties involved in a dispute have to agree to the decision made by the arbitrator.
Mediator Vs Arbitrator
When it comes to mediation or arbitration, the mediator or arbitrator does not have to represent either side of the dispute unlike in litigation where each party hires a lawyer to represent them. Moreover, the mediator or arbitrator does not provide legal advice to either party. The role of the mediator is to bring the parties involved in a dispute to reach an agreement. Some of the challenges faced by a mediator are mentioned below in order to better understand the difference between mediation and arbitration.
- The mediator has to conduct an assessment before taking on a case in order to determine the appropriateness of working on the case.
- A safe and neutral environment has to be provided to the parties involved in a dispute. The parties have to be legally, physically, psychologically, and emotionally safe so that they can feel free to fully participate in the dialogue and negotiations without having to worry about any prejudice, judgment, threats of reprisal, duress, or fear.
- Has to manage intense emotions to provide each party with an opportunity to express their goals, concerns, and worries completely without being insulted or disempowered by the other party.
- The mediator has to identify any contentious issues and has to work towards making the parties feel empowered to work on issues below the surface. This helps the parties see the underlying issues that resulted in the dispute in the first place.
- Working towards ensuring that each party remains focused on the main objectives of the session.
- To provide the parties with better understanding of how the other party feels.
- To encourage each party to offer their own solution or find a neutral way to tackle the dispute.
- Ensuring that the efforts of each party are reinforced to negotiate and reach an amicable resolution. The mediator has to make sure that the parties remain at the table despite things getting tough to deal with.
- Checking up on each party in private to discuss their concerns and alternatives to the settlement while ensuring neutrality is maintained.
- Making sure that each party knows about the costs of other alternatives such as a costly litigation case.
- Managing each mediation session wherein the parties are treated equally, respected, and heard.
Unlike arbitration where the arbitrator works towards providing a decision to both parties involved, in mediation, the mediator has to work towards finding common ground in order for the parties to reach an agreement. The mediator helps the parties to work together to reach a final settlement regarding all the issues.
On the other hand, the arbitrator has a different role, one which is similar to what is commonly observed in a judge. Moreover, arbitration is conducted at a hearing or through writing. The arbitrator can ask the parties to provide further explanations and documents to properly examine the dispute. Only after the explanations have been heard and the documents have been examined, the arbitrator would hear the case as presented by the individual party. Then, a decision will be made by the arbitrator. This decision is known as an award. The decision is legally enforceable and both parties have to adhere to it. However, there are certain circumstances where the decision can be appealed. The decision made by the arbitrator has to be in writing and communicated to all the parties involved. Furthermore, the arbitrator has to provide an explanation as to why the decision was reached.
The cost of mediation and arbitration is equally split between the parties. This means that the parties equally pay for the cost of hiring the professional. It is a lot less expensive as compared to hiring a lawyer and bearing the cost on your own. However, as compared to mediation, arbitration tends to be more expensive as there are several procedures involved. Thus, mediation is the cheaper and more flexible option. It provides you and the other party with greater control over the outcome. If you are thinking about hiring a mediator to resolve a dispute, make sure to hire the best Los Angeles Mediator.