Mediation v. Arbitration

The main difference between mediation and arbitration is that arbitration is very similar to a court process. Instead, in mediation the parties work with a third neutral party who oversees the procedure. The mediator is a facilitator and an enabler which helps the parties in finding their own solution to the conflict opposing them. Since the final solution is found by the parties, compliance and voluntary implementation of the final mediation settlement is the norm. The mediator does not issue orders, finds faults or makes determinations. Instead, the mediator helps parties to reach a settlement by assisting them in their communications and in the elaboration of possible solutions. A mediator is neutral, impartial and bound by confidentiality. The mediation process itself is always carried out ‘without prejudice’. This means that whatever is said or done during the mediation process is covered by confidentiality and cannot be used in court should the mediation fail. The parties and their lawyers play a very active role in a mediation procedure as they voluntarily initiate mediation and are in full control of the final solution. Through the use of communication and negotiation techniques, the mediator will help them working in a context of mutual respect. Guided by the mediator, they will identify the subjects to be addressed and their respective needs, they will elaborate options and work together towards a creative and pragmatic solution.