Have you noticed that more and more disputes are being resolved through “arbitration” or “mediation”? It seems that more and more in the news lately, we have been reading about and hearing about these and other alternative conflict resolution methods – also referred to as alternative dispute resolution, or ADR. As a mediator, I am thrilled to see that in many different contexts – in the workplace, in schools, labor disputes, between individuals in minor disputes to the most contentious international conflicts.
However, there seems to be confusion and misunderstanding about the differences in the types of ADR processes. And, it doesn’t help when the media uses some of those terms improperly interchangeably.
For instance, recently, on June 29, 2012 in the “School Book” section of the New York Times an article was published entitled “Mediator Halts City’s Plan to Overhaul 24 Schools” authored by Al Baker. However, the very first sentence in the article indicates that it was an arbitrator that reached a determination in a dispute between the Unions and the Department of Education. You can read that article here.
While mediation has been a widely used technique dating back to at least the 14th century, it is often confused with arbitration which is a different process, and sometimes it is even confused with meditation, which has a similar spelling.
Mostly, I think, mediation is simply misunderstood.
I looked up the definition of “mediation” at www.dictionary.com which defines the term as:
1. action in mediating between parties, as to effect an agreement or reconciliation.
2. International Law . an attempt to effect a peaceful settlement between disputing nations through the friendly good offices of another power
and also at www.merriam-webster.com which defines the term as:
the act or process of mediating; especially : intervention between conflicting parties to promote reconciliation, settlement, or compromise
Aside from the fact that I never have found it to be helpful to define a term using the term itself, the definitions are still lacking. My explanation of mediation is that it is a process whereby each participant to the conflict consents to a voluntary process facilitated by a mediator. The mediator, in effect, steps in between the disputing participants and helps them to resolve their own dispute through various mediation techniques. Essentially, the mediator encourages each participant to express and understand each other’s perspective and then works with them to reach a resolution that considers the needs and interests of each. The mediator does not make any decisions, but is trained in helping the participants to making decisions together in resolving their own dispute. The process is voluntary, confidential and either participant can end the process at any time.
Arbitration, which is defined at www.dictionary.com as:
1. the hearing and determining of a dispute or the settling of differences between parties by a person or persons chosen or agreed to by them: Rather than risk a long strike, the union and management agreed to arbitration.
2. International Law . the application of judicial methods to the settlement of international disputes.
and at www.merriam-webster.com as:
the action of arbitrating; especially : the hearing and determination of a case in controversy by an arbiter
is a process where a third party, selected by the parties, makes a decision for the parties in a process similar to the adjudicatory process in court.
There are also processes which combine some of the features of mediation and arbitration in a type of ADR often referred to as “med-arb”. And, there is also collaborative process which has been utilized as well and which I previously discussed in an earlier post about options to resolving your divorce.
While there are many types of mediation styles, there are also many types of ADR options available. Conflict and controversy has been prevalent throughout the centuries and will continue, but the way in which people resolve their disputes has been evolving and changing. Resolving disputes in court and going through litigation is an option, but it can be very expensive and time consuming. So ADR options are available. Sometimes, such methods are sought out by the parties themselves and other times they are mandated by court or by political officials.
One of the reasons that mediation may be so misunderstood is because of the confidentiality of the process. Many thousands of people and organizations have utilized mediation successfully, but they do not frequently publicize or publicly mention the benefits from mediation, because they too value the privacy afforded by the process.
And, it was only recently, in 2011, that mediation was prominently shown in a weekly television series called “Fairly Legal” where the main character, Kate Reed (played by Sarah Shahi) quit her job as an attorney at her father’s law firm to become a mediator. In various episodes she is seen resolving various conflicts – sometimes humorous (such as in an episode where she mediates between an armed robber and a coffee shop owner) and also in the capacity as a court-assigned mediator to settle disputes before they go for trial.
So despite its historical longevity, it was only a year ago that mediation was finally recognized in a nationally-syndicated television series and even there, it doesn’t “fairly” and adequately represent the reality of how the mediation process works. So, there is still a lot of education that is needed and there are many educational opportunities – law schools now have courses, there are masters programs in graduate schools and even in elementary schools children are being trained to be peer mediators at their schools.
I’m curious whether any of my blog readers have experienced or heard about mediation or other types of ADR and what their experience has been. So, please, use the comments below to share what type of ADR you have used or heard about and tell us your experience.
The way you presented and clarify the difference between the two terms is great, Sabra. And I also do agree that a mediator always have lots to offer. Thanks for sharing.
I wish more people would use mediation before getting into a big legal battle over divorce or other relationship mishaps. Sometimes it seems to me emotionally immature to fight so badly with the one you once claimed to love more than any one else. Thanks for this educational article.
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Thanks for such a good clarification between the two terms. I know a few mediators and think it’s an important profession in this crazy world.
Yes, I know what a mediator is. One of my best friends is a Mediator. Didn’t know that be get mediator and arbitrator confused or use them interchangeably tho. I’ll be careful.
Thanks for this informative article. I do know about mediation, but only because I worked in social services for a long time and it was an integral part of family law practice here. It’s a valuable process and it’s unfortunate that more people don’t choose mediation instead of litigation.
Sarah, what a great article on the subject of mediation v. arbitration. I agree as a few of my family members have gone through mediation for their divorces. It is vital they know the difference. I only wish marriages did not have to even come that close, especially for the sake of the children. Therefore, I’d love to collaborate with you in Growing Healthy Families.
Hi Sabra
Thanks for the distinctions – when you get teams out of flow then it is so much more likely that misunderstandings and a lack of alignment could result in disputes and even legal action.
As the old phone advert used to say, “It’s good to talk!”
Una Doyle
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My mother has been a trained mediator and negotiator for over 20 years. She started by working with a Farm board as a mediator between financially struggling farmers and their creditors. She was awesome with them!
I think is it a skill that is needed and should be promoted more for sure.
Amanda Maynard
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Very interesting, thanks for explaining the difference between the two terms!
Thanks for the explanation on the difference of the two terms….I worked with an agency for many years and it seemed that they did both. Now that I know the difference, it definitely helps in understanding all that!
Thanks again…
xo, Tina
Sabra,
It was great talking to you yesterday about the prevelance of competition in NYC and the importance I feel in bringing more collaboration into our society.
This blog resonates with that on so many levels and I am proud to have you as a friend and contemporary, although we work in different fields.
If any of the women on this thread would like to explore this idea of collaboration, especially in leadership, please feel free to email me at katie@tribal-truth.com and check out what we’re doing in NYC and across the globe for women leaders at http://www.tribal-truth.com
Looking forward to more of these posts from you, Sabra!
Xoxo
Katie
I don’t know the difference between any of it. I’m familiar with the show. I’m familiar with the concept of mediation in divorce proceedings. And with business partners who can’t get along–I imagine that’s something else entirely. The whole idea of having someone in place to legally help you work stuff out rather than going the attorney route is fascinating.
Hi Sabra, I completely agree that mediation has a lot to offer. If more people were prepared to work through issues rather than just start legal proceedings then the world would be a more responsible place. Thanks for spreading the word
Yes, and I just found out that one of my friends has started a group encouraging more collaborative thinking and communication among colleagues. So many people in NYC (and throughout the world) are reactive, rather than proactive, and are so quick to “fight” and sue, rather than simply talking it out, or bringing in a third-party who can assist in helping them resolve their dispute or misunderstanding.
If people would learn to see the good in people rather than assume the worst, and realize that most people want a peaceable solution – the world may just be that much more pleasant for all of us.
Yes, Sarah! I totally agree!
Sabra, Thanks for explaining the differences between mediation and arbitration. Your article brought up a lot of questions for me. (More blog post ideas for you!) Why do you think the trend is going towards arbitration and mediation? Is it faster, less expensive? or is there more access now to different ways to solve conflicts? As a mediator how does your training differ from someone who would arbitrate a conflict?
Thank you. Duly noted.
I haven’t heard of any specific techniques or cases, but I know that many people I speak with who are on the brink of divorce hope that they can have an amiable divorce with a mediator–that old cliche of skewing your former loved one in court doesn’t have the same kind of cache as it did ten years ago. I am looking forward to other comments, great post!
BBB does arbitration. I imagine arbitration and mediation would be valuable. Ideally, we would make 100% of our clients so happy that there would be no arbitration or mediation. I think in life and in business, we are better off if we can work it out on our own. If there is an attorney involved, it is almost always my experience to take a loss is less expensive than to pay the attorney (anything under $5,000.00).