In a recent conversation I became aware that there remain many misconceptions about mediation. I hope to address few of those in this and the following posts. In this particular conversation with some community leaders, they were surprised that mediation is not the same as submitting your claims to a third-party who decides the outcome for you. They knew it was not the same as going before a judge or jury, but the still understood it as having an outside decision maker. That is not mediation, it is arbitration.
Arbitration has become increasingly popular among businesses. In nearly any contract these days one is likely to find an arbitration clause. The clause essentially binds the parties to attempt to argue any dispute to an approved arbitrator instead of going to court to decide the outcome of the conflict. The purpose is to reduce the costs of litigation by streamlining the process. These clauses almost universally benefit the business who wrote the contract since they choose, in advance, who the arbitrator will be.
In arbitration, the two (or more) parties in dispute prepare their arguments and evidence, present those arguments to the arbiter with supporting documents, and then agree to abide by that arbiter’s decision. Rules of evidence are lax to non-existent and sometimes lawyers are not even involved. However, think about it, these arbiters get their income from cases that come to them from big businesses naming them in the very contracts that the business wrote. How many times might that company lose in an arbitration and still use that arbitrator? So, arbitration is like court-lite and a third party decides the matter. There is a winner and a loser.
Anyway, mediation is not arbitration. The decision makers remain the parties who have the dispute. They either come to an agreement or they do not. Nothing is imposed on them. The mediator guides the process, not the outcome. A good mediator will help the parties to develop unique ideas that address the issues in conflict or help the parties to compromise in ways that benefit everyone. At the end of the day, though, the outcome belongs to the parties that had the dispute, not a third-party. That increases a sense of ownership and satisfaction in the outcome. There are either two winners at the end or, at worst, the conflict simply has not been resolved yet. Mediators are guides, not deciders.