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Mediation is not Arbitration!


Let's get things clear:

Mediation is not arbitration.

It is fundamentally different.

However, there seems to be a lot of confusion, even amongst those professionals who are strongly encouraged to use mediation, about the fundamental differences between the two.

And I do mean, they are absolutely fundamental differences.

(Ok, I've said fundamental enough now, it won't happen again.)


Consider the following which is taken from a blog by a lawyer in North Carolina:


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."

But mediation is not arbitration - so why was he expecting this?

I was quite stunned when I read this as it brought home to me the confusion that exists about what mediation is and its approach and purpose in supporting the resolution of a dispute or conflict.

The gentleman above doesn't seem to have had explained to him that a mediator, by definition, isn't there to give an opinion of the 'rightness' or otherwise of the position of a party who is having mediation.

The whole point of mediation is that it provides the opportunity for the participants to create their own decision about what they are happy to accept as a way forward.

Whatever they agree to is their 'rightness' and no other person is present in the room to do this for them. If there is someone there for that purpose - it is not a mediation meeting.

He goes on to object to the response of a mediator that to make such an assessment would be unacceptably evaluative.

This response misses the point. The mediator is not present to give an evaluation. That's not what they are paid to do in mediation, it's not the purpose of the mediation process, and a mediator's 'evaluation' would not be relevant, nor useful, and in fact would be counter to the purpose of the mediation. Because mediation is not arbitration.

How is it that this has not been explained to all present prior to the meeting?

It's not just 'unacceptably evaluative' - it wouldn't be mediation if the mediator did give any form of evaluation.

An evaluation, assessment, decision on behalf of the parties etc. is what happens in arbitration and other 'third party evaluation/judgement' processes - not mediation.

Mediation is a completely different, non-adversarial, client led process.

Because there is an evaluation/judgement in arbitration it is an inherently adversarial process whereby the arbitrator makes a decision which may be in favour of one party and against the other.

The aim of the parties in dispute in arbitration is to persuade the arbitrator of the greater 'rightness' of their case so that the arbitrator will find more in their favour than against them.

In mediation, the continuous intention of all present is to find / create an outcome that is satisfactory to all involved in the disagreement, and that outcome is created by them and not by anyone else.

Any practice by the mediator that seeks to create the outcome for the parties is inappropriate to their role and the skill and discipline of the mediator is to continually monitor and reduce their own inclination to do this and modify their practices accordingly.

If the mediator does not do this, the process they provide moves towards being arbitration, even if not formally described as such, where the mediator 'becomes' the arbitrator whose views become pertinent and influential to the outcome of the case, and possibly even decisive if they completely lose sight of their role. But mediation is not arbitration so this would be a confusion of roles.


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Which is it gonna be?

There is nothing wrong with arbitration if that is the way in which the disputants decide they want to proceed. But why go to a mediator if arbitration is wanted?

If you want to have your house rewired, you wouldn't go to a plumber, so why would a lawyer, and his/her client, go to a mediator and expect them to provide a process which is more like arbitration?
The lawyer's blog entry proceeds to recommend the use of a process called 'neutral evaluation'. He says:

What is a "neutral evaluation?" In short, it's "a process in which a third party neutral examines the evidence and listens to the disputants' positions, and then gives the parties his or her evaluation of the case."

A link is given to a site that explains more about neutral evaluation - and, not surprisingly, the idea is explained by the American Arbitration Association.

Not, you will observe, the American Mediation Association......or equivalent if there is no such organisation. Perhaps that's because mediation is not arbitration?


This leads me to puzzle over why it is that people are wanting mediators to act like arbitrators, when they already have access to arbitration, and arbitrators?

Is it that there is a strong recommendation to use mediation but very little education provided about what it is and the fundamental differences between it and arbitration and other processes?

As emphasised before, they are fundamental differences. (Ohhhh blow, I said the f-word again... really is the last time this time - promise.)

Anyone who wants arbitration will be disappointed by mediation, and anyone who is looking for mediation will see straight away that arbitration does not fit the bill. This is because....you guessed it.... Mediation is not Arbitration.

And others will need to have the difference between the two explained to them so that they can make a choice - which, in turn, means the professionals who are advising them on this need to understand the difference themselves!.....

Which leads to the observation that it is also clear that many people who say they practice mediation are contributing to professionals, such as this particular lawyer, experiencing ambiguity in their understanding.

Many mediators themselves are not explaining or even asserting the difference between mediation and arbitration when they are approached by clients, or by lawyers and other professionals seeking mediation for their clients......

The Specialist(?) Mediator

An example of this misrepresentation and a source of confusion for clients is the idea of the 'Specialist' mediator, who, it is sometimes suggested, 'has a background' in the field in which the dispute occurs.

Why would this be necessary? The mediator is not present to bring their 'expertise in the field' to the situation. And yet to have a 'Specialist' mediator implies this is so.

If the mediator's background 'in the field' is important, it implies they will be introducing their own opinions and ideas to the dispute - in which case we are back to a form of arbitration again! But mediation is not arbitration ....so that wouldn't make sense. There seems to me, as a mediator, a lack of clarity to the role if that is important.

No wonder some people are confused when even some mediators are implying their role is to have an expertise in the area in which the disputants are involved.

The expertise or skill of a mediator is to facilitate and support communication between those in dispute and to promote their creativity in generating new ways forward in the situation.

WHATEVER THE NATURE OF THE DISPUTE!

I've heard arguments to suggest disputants might say Well we want someone who understands the field and the language and the technical issues involved. (I've never actually heard participants themselves say that, just others who say they 'might' say that).

But this implies that the parties in dispute have that understanding already - when in fact the very basis of the dispute will be their differing understandings and expectations of the 'details' of the dispute.

As a mediator, I never expect to 'understand' the situation and issues involved in a dispute. It's not my dispute, it's the participants' dispute - they are the experts in their experience of their situation and its details!

My concern and my role is in supporting those present to understand each other and their reasons for responding the way they have in the situation, and to support them in creating a way of responding that works for both or all of them beyond the mediation.

Supporting understanding of each other is not a 'touchy feely' intention, it serves a practical purpose. Often disputes pivot around different understandings of terminology and enabling a shared understanding to be achieved is one of the main opportunities mediation provides.

If we have a situation where there is a professional in dispute with a member of the public, and the mediator is expected to be an expert in the field, then there is a strong risk that the member of the public will feel isolated and intimidated by the two 'experts in the field' - the mediator and the professional- neither of whom are likely to be aware of the impact of not understanding the technical language and complexities of 'the field' on someone who is not an expert - the member of the public.

Therefore the member of the public risks being excluded from an understanding of the dialogue between the 'Specialist' mediator and the professional rather than supported by the mediator in creating a shared understanding with the professional.

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The 'Specialist' mediator risks losing their impartiality, and risks disempowering the 'non-expert' party through their loss of a sense of ownership of what is discussed, and how it is discussed.

The 'expert' party can be led to believe 'The mediator will fully understand where I'm coming from if they are an expert like me. They'll see the reasonableness of what I'm saying, the other guy is just an amateur who doesn't understand.'

The 'non-expert' party can start to believe... 'The mediator is in cahoots with them, they're all in it together, probably went to the same college. They're gonna make me look stupid with all their technojargon.'

And so the mediator becomes an 'issue' in the dispute.

Some mediation services give the CV's of their mediators to their clients so that they can choose the mediator on the basis of their 'background'.

What's that about?

What message is that giving to parties about the role of the mediator in the mediation process?

What if the parties don't agree on the choice of mediator because their background suits one party and not the other?

Does it go to arbitration?

All of these practices make the mediator central to the dispute rather than peripheral and facilitative. The role of the mediator is to be as invisible as possible within the situation, as uninvolved in the actual content of the dispute as possible.

It is not their dispute and they will have no role in it beyond the mediation, and any 'brick' they leave in what is built, will fall away afterwards, and the more that are left, the greater the risk of collapse.

His/her role is to support the parties themselves in creating a way forward, and all of the skills and disciplines of the mediator are directed towards that aim.

Mediators bring the skill and practice of mediation. Having a 'background' in the area of the dispute can be more of a hindrance to their capacity to mediate in the situation than an enhancement.

If we were talking about arbitration, the exact opposite would be true.

But we're not. So....

Let's get things clear!

Mediation is NOT arbitration.


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