Mediation vs. Arbitration

Both mediation and arbitration are ways you and your spouse can resolve any differences between you without going to court. And many of us tend to merge them in our minds. Don’t. Mediation and arbitration are very different ways of resolving differences.

A mediator has no power to impose a decision on the husband and the wife. He or she is there solely to help the husband and wife find a resolution that both of them will find acceptable. If they cannot agree, that’s as far as the mediator can go.

An arbitrator, on the other hand, has the power to impose a settlement. The arbitrator listens to the arguments in favor of the husband and the arguments in favor of the wife, and then renders a ruling. Typically, the husband and the wife will agree in writing to submit to arbitration before the process begins. They will agree in advance to be bound by the arbitrator’s decision, whatever it is.

I sometimes have people ask me in mediation when they’re unable to agree if I would just rule on the issue to resolve it. What they’re describing is a form of a hybrid dispute resolution technique called “med/arb” (pronounced “MEED/ARB” or sometimes “MED/ARB”).

In med/arb, the parties know when they begin the process that there will be a resolution. They know that if they are not able to resolve the matter by agreement in mediation, an arbitrator will settle it with a ruling.

The question is whether the person who has served as the mediator can then switch roles and become the arbitrator. That certainly would be the least expensive alternative, because the extra cost for the mediator to “rule” is minimal. The problem is changing the mediator’s role after the fact. One of the hallmark principles of mediation is the preservation of confidentiality of mediation. Because of that, mediators hear things that may or not be relevant to the issues at hand, and in fact that may be prejudicial.

Because my primary focus is trying to keep the cost and pain of divorce at a minimum, I find it tough to say that no one should ever serve as both the mediator and the arbitrator in dealing with the same facts. I can only say that, for me, the conflict is irreconcilable, and I cannot make the transition. The moral here is that you and your spouse should talk with your mediator before the process begins to explore whether your mediator would be willing and able to act as an arbitrator in the event the two of you cannot reach an agreement in mediation.