People often confuse the roles of mediators and arbitrators. While both types of neutrals can help people who have a dispute resolve their conflict, arbitrators and mediators often go about doing so in different ways. Arbitrators, like judges, decide who should win or lose a case after evaluating evidence, and the parties in dispute are bound by that outcome. The outcome in mediation, however, is voluntary, and the parties do not need to decide to settle or obey an outcome determined by the mediator. However, parties in mediation can agree to have a judge or other third party make sure that they enforce a settlement agreement so that promises are not hollow.
Benefits of mediation over arbitration
For that reason, when parties reach an agreement in mediation, they may be more likely to carry out that agreement than if a judge or arbitrator imposes a decision against someone’s will, especially if someone thinks that decision was wrongly or unfairly decided. Many large arbitration panels or firms never filter out an arbitration candidate for bias or biased decisions as part of the selection criteria that are actually considered but only written in as an afterthought for arbitrators to admit when they are biased to recuse themselves, which does not necessarily happen in practice. Absent special circumstances, a binding arbitration decision often means the losing party is stuck with the decision. A benefit of mediation is that parties can usually continue to have their case decided by a judge or arbitrator if mediation fails.
When to choose arbitration
The benefits of arbitration are that sometimes the parties are too far apart and still need a way to resolve their conflict peacefully, are unable to achieve what they desire in mediation but can in another process, or are involved in a type of dispute that is inappropriate for mediation. Alternatively, sometimes a party simply does not want to settle and wants the other side to suffer, or one party will only settle if another party compromises their values or crosses another red line. There, mediation will unlikely result in a settlement, and such cases may be appropriate for decision by an arbitrator or judge. Lastly, sometimes arbitration is written into contracts, so that may be the only form of dispute resolution allowed unless all parties agree after the fact to mediate first.
Mediation styles
There are three main types of mediation: facilitative, evaluative, and transformative. An evaluative style of mediation is the most directive, the transformative style the least, and facilitative as the Goldilocks in between.
Facilitative mediation
One of the most common styles of mediation is facilitative mediation. Facilitative mediators do not tell the parties who is right and wrong but rather facilitate communication between the parties so that they can reach a mutually agreeable settlement or outcome or help the parties figure out if there is any possibility for settlement.
Evaluative mediation
An evaluative mediator is often a former litigator or judge who tells the parties how they would rule, has seen courts rule in similar circumstances, or lists the pros and cons of each side to provide reality-checking for the parties. However, the parties are not bound by the mediator’s opinion. Sometimes this is also called neutral evaluation.
Transformative mediation
A transformative mediator focuses on a laissez-faire, hands-off approach and on repairing the relationship between parties in a dispute.
Whereas a facilitative mediator may act like a traffic cop directing the flow of conversation so that parties do not interrupt each other and snowball many issues at once to become a fighting match, transformative mediators welcome the full range and organic unfolding of conflict, only intervening to hold space for the parties or act as a mirror to the parties through summarization of parties’ positions. While facilitative mediators also may summarize parties’ positions, facilitative mediators are more proactive than transformative mediators in the dispute resolution process.Â
Facilitative or transformative mediation can be less costly than arbitration, lawsuits, or evaluative mediations
Facilitative mediation and transformative mediation can take far less time than evaluative mediation or arbitration because the facilitative or transformative mediators are not spending enormous amounts of time reviewing documents, doing legal research, or drafting written documents to judge who is right and wrong. For that reason, the same arbitration that may take a couple of months may only take a facilitative mediator a couple of hours to resolve.
Facilitative mediations allow for comprehensive, win-win solutions
Facilitative mediation can also help the parties move forward and decide what they can agree to from here on out instead of dwelling on who did what in the past. This style of mediation also allows for creative problem solving and win-win solutions that other forms of dispute resolution do not allow. For example, if a dispute involves many parties with a stake in the conflict (e.g., spouses, insurance, children, mutual friends, in-laws) but only a couple of individually are sued officially, a decision by a judge, arbitrator, or evaluative mediator may only fix part of the problem or a surface issue involve only those formally on a complaint or lawsuit caption.
Similarly, both transformative and facilitative styles, unlike evaluative mediation, may result in more holistic solutions outside of the narrow lens of what is legal or follows policy. Sometimes, even when a party wins technically, they lose overall (winning the battle but losing the war).
Therefore, every type of process has its own benefits. Figure out which type of conflict you are in and which process would benefit you the best for that circumstance.
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