Let’s Be Clear, Mediation Is NOT Arbitration

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As a mediator I feel clear about the underlying thinking that guides my practise and clear about the way in which I use the skills of mediation in order to remain consistent with that underlying thinking. As with all skills I am never perfect in practising them but I can still remain clear about the Guiding Principles which serve as a benchmark for me to refer to in order to guide me towards that perfection.

Sadly I see commentaries about mediation which do not seem to show consistency in the thinking that underlies it, nor a rigour in the practise that follows. Mediation is often described as a process which is more akin to what I understand to be arbitration, something which, in my view is fundamentally different from mediation.

Inevitably there seems to be a lot of confusion and academic debate arising from this blurring of the boundaries between the two processes and an outcome of this can be confusion and dissatisfaction for the client, and even for the professional wishing to promote mediation and / or arbitration.

In this article I would like to identify what I see as the fundamental differences between mediation and arbitration and show that the blurring of the boundaries always causes the process to default towards arbitration rather than mediation.

To start with let us consider the ADR Forum definitions of Arbitration and Mediation and I will then highlight what I see as the fundamental differences between the two and how a lack of rigour in maintaining the practises of mediation lead, by default, towards arbitration.

What is Arbitration?

Arbitration is a faster, simpler, and less expensive alternative to litigation. Disputes are brought before a neutral third party (the arbitrator) who, after carefully reviewing all of the relevant information, issues a final decision in favor of one of the parties. Consumers, businesses and government departments—even courts themselves—have successfully used arbitration programs for dispute resolution. There is widespread satisfaction with the process. Arbitration offers parties a decisive legal outcome to their dispute without the expense and inconvenience of court proceedings and attorney fees.

What is Mediation?

Mediation is a voluntary method of alternative dispute resolution that allows parties to craft their own solution to a dispute. In mediation, an unbiased third party (the mediator) assists the parties in this process by conducting private interviews and negotiations with each party to discuss settlement opportunities and facilitate an agreeable solution. Mediators never impose decisions on disputing parties; rather, they encourage disputing parties to find common ground and resolve their dispute on their own terms.

Fundamental differences:

1. Adversarial/Non-Adversarial: Arbitration is an adversarial, competitive process whereby each party presents information, evidence etc. with the aim of ‘winning’ and, consequently, the other party must ‘lose’.

Mediation is a non-adversarial, co-operative process whereby both parties seek to find an outcome in which neither is seen as winning any more than the other, acknowledging that if this were felt to be so by one party then agreement would not ensue. An agreement is based on both parties believing that its content is the best outcome they can create from the situation, or even that simply the discussion that occurs between them has enabled resolution to be achieved whether ‘enshrined’ in an agreement or not.

Comment on 1: As a result of a mediated outcome being created by the parties themselves this opens up the possibility of outcomes being created that would not be possible via an arbitrated outcome which has to refer to legal guidelines to form a decision.

The disputing parties may want a legally defined outcome, in which case an arbitrated outcome will suit their interests and needs, rather than mediation.

However in situations where disputing parties do not wish their outcome to be constrained by a limited set of possibilities defined by legislation, mediation allows for a far wider range of possible outcomes that, if needed, can be enshrined in a contract at a later date. Or not. The point is – the parties decide.

It would be wrong to see one process as ‘better’ than the other. One may be more ‘suitable’ to a given situation than the other, either due to the nature of the situation or due to the wishes of the disputing parties with respect to how they wish to achieve an outcome and what that outcome will be. What is important is that there is not a confusion between the two, so that the most suitable process is used and that the decision about which one to use is based on a clear understanding of the differences.

Unfortunately, if mediation is used in situations that involve legal representatives there can be a blurring of these understandings. The legal representatives may be wanting a legally defined outcome while the disputing parties may be wishing to create a less constrained range of outcomes. A legal representative may be used to pushing for a ‘win’ for their client, such that the other party ‘loses’, while the clients may be wanting an outcome that works for both of them.

In such situations there can easily be a confusion with regard to whether arbitration or mediation is the most suitable, as is shown in this section from a Lawyer’s blog, which seems to be expecting something more akin to arbitration from a mediator:

Mediation often devolves into the mediator shuttling back and forth between two rooms, carrying alternating declining and increasing offers to the parties.

There are times during this ping ponging of offers when I wish the mediator was pushing harder on the other party to explain the absolute rightness of my client's position, inevitably to result in summary judgment in our favor, or explaining to me why my client and I have missed the boat in evaluating the case. Most mediators won't do that, and dismiss the concept of informing the parties of the mediator's perception of the quality of their case or defense as being unacceptably "evaluative.”

2. Evaluator/Facilitator: Following from the above differences between the two processes, the role of the third party is also fundamentally different:

The Arbitrator decides the outcome on behalf of the parties and they accept this as binding. They have no ‘ownership’ of the outcome, this being willingly passed to the arbitrator.

In mediation, the Mediator is explicitly separated from the decision about the outcome, which is instead, created by the parties with the assistance of the mediator’s facilitation.

Comment on 2: The model of mediation given in the ADR forum definition above describes a Mediator as someone who passes between the parties who are kept separate. However many approaches to mediation use a model in which the parties are together in one room and the mediator facilitates their discussion. In my view the latter is less prone to a blurring of the edges between the two processes as the mediator is less ‘central’ to the discussion and less at risk of feeling drawn to input their own thoughts.

Any questions or comments that arise from one party’s proposal can be immediately responded to by the other party rather than the Mediator have to either respond on behalf of the other party or repetitively and exhaustingly carry messages backwards and forwards between their separate rooms. In time this is more likely to lead to the mediator inputting their own views, based on their own ‘evaluations’ or ‘informal assessments’ – as a ‘mediator’ for the UK’s Financial Ombudsman Service once described it to me when dealing with a complaint I had made. As a result of making his ‘informal assessment’, he immediately lost my trust that he was impartial. By default the process had now become more like arbitration, except that I had not willingly accepted the mediator’s ‘view’ to be binding but felt a pressure to do so.

This practice fundamentally undermined the mediation process as one that is impartially facilitated. A mediator’s expressed view inhibits the creation of an outcome by the disputing parties and undermines the impartial status of the role.

A commitment by the mediator to not expressing any view maintains that rigour of practice and maintains alignment with the underlying thinking of mediation whereby parties are supported in creating their own outcome.

3. Expert / Creativity Supporter: Further to the distinction between the roles above, an Arbitrator needs to have an expertise in the area of dispute being arbitrated, otherwise their decision will lack credibility.

A Mediator does not need any expertise in the field of dispute as their role is to facilitate discussion and creative thinking by the parties themselves, who are considered to be the sole experts in their area of dispute.

Comment on 3: A Mediator who ‘brings expertise’ is at risk of drawing upon that to ‘advise’ on the situation, moving them more towards an arbitration role in which they start to evaluate the situation and/or decisions made by parties, and give their ‘input’. In some cases, lawyers have been known (see blog excerpt above) to expect a mediator to give such an evaluation with a view to using their endorsement of a particular view to push for a particular ‘winning’ outcome for their client.

Again this moves the role towards that of an arbitrator in the eyes of the participants and towards an adversarial process. Further to this, the Lawyer is playing a role in creating the outcome rather than their client, which further distances the process from being one that is client led and through which disputing parties create their own outcome.

Sadly, some mediators highlight their ‘expertise’ in a particular field as a selling point when publicising their work, leading me to doubt the clarity of distinction between what they provide under the heading of mediation and arbitration.

I am disappointed by the lack of clarity that seems to exist amongst both clients and professionals as well as practitioners who say they are mediators, and sadly the practise and status of mediation seems to be at greatest risk as a result, with false expectations and mixed messages arising from the confusion.

Mediators who do not reflect on the consistency of their role nor treat such reflection as an important discipline within their practice are prone to acting in ways that are not clearly distinct from arbitration.

There is a fundamental difference between mediation and arbitration, the two do not ‘mix’.

So please, let’s be clear, mediation is NOT arbitration.