Thursday, February 24, 2011

Week Seven: In what ways are mediation and arbitration similar? Different?

            There are two ways that mediation and arbitration are very similar. First, both processes involve a third party (221, 235). In mediation, this third party “has limited or no authoritative decision-making power” (221). Instead of making a decision for the parties, in mediation the third party typically enables the parties in conflict to have their own discussion and arrive at their own solution (222). Of course, the results of mediation vary, but the third party’s role is to create space for dialogue and possibly a solution to emerge from the parties in conflict (221). In arbitration, the role of the third party is that of a decision-maker (235). Essentially, the third party is chosen to listen to the perspectives of both sides and come to the best decision for everyone involved (235). So, while the roles are very different, one similarity between mediation and arbitration is the involvement of a third party in the process.
             The second similarity is that both mediation and arbitration are alternatives to typical legal options (220). As alternatives, mediation and arbitration processes enable the parties in conflict to be active participants in creating their own solutions. This participation plays out differently in mediation and arbitration. For example, in mediation the parties are able to come to their own solution (222). However, even in arbitration, with the third party holding the decision-making power, the parties have chosen to take part in the arbitration process and chosen to involve the third party (235). For this reason, the parties are significantly more invested in the process and the solution in arbitration than they would be in a litigation process (235).
            In exploring the similarities between mediation and arbitration, I have also touched on many of the differences. However, one difference stands out between these two processes, and that is the role of the third party. While the third party is neutral in both mediation (231) and arbitration (235), in arbitration the third party is required to make a decision. Thus, in arbitration the third party is more involved in shaping of a solution. As Cheldelin points out, there is much debate about the neutrality of the third party in the mediation process (231), with many scholars and practitioners doubting that it is possible or even helpful for the third party to be completely neutral. I share these doubts, and I really struggled in mediation training with the idea that in order to be a good mediator I was not allowed to care about the situation at hand. However, also I would not want to be in a process in which I (as the third party) had all the decision-making power. Thus, for me the “med-arb” approach that combines these two processes is very appealing (239). This process, which creates space for dialogue between the parties but ultimately leaves decision making power to the mediator/arbiter, has great potential as a balanced alternative to litigation (239).

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