The decision to either mediate or arbitrate is a question I am asked frequently. To help a person understand the difference I use a very simple image: Imagine a person who listens to your dispute, tells you what to do, and then says there is no talking back. In other words, the arbitrator is somewhat like a parent.

In most instances the arbitrator is a neutral third party who has some experience in the general area of the dispute. They listen to testimony and review evidence.  Generally speaking the rules of evidence are less stringent than in a court adjudication because the arbitrator renders the decision.

Most of us are parties to many contracts that specify that disputes are to be resolved through arbitration. That ranges from agreements with banks, real estate agreements, telecom companies, medical specialists and others. Overall, there is little or no appeal of these decisions. The advantage of arbitration is that it is much faster and much less expensive than court adjudication and is usually confidential.

After a suit has been filed, the court may offer parties the option of using arbitration before a trial. In these cases of judicial arbitration, generally speaking if the parties do not accept the arbitrators ruling, then the dispute goes to trial as if the arbitration had not occurred.

Recently contracts requiring arbitration have been in the news. For example, JPMorgan Chase notified more than 40 million credit card holders that they will have to use arbitration to resolve any disputes with the bank forgoing the option of filing a lawsuit or joining class-action suits. And Uber is using arbitration now with its millions of drivers for the same reasons. A recent study at Stanford University’s Graduate School of Business analyzed some 9,000 arbitration cases involving financial institutions. They found that the companies routinely used arbitrators that tended to be industry-friendly. Even if the arbitrator comes from a neutral organization, the businesses has a better idea of an arbitrator’s background and past awards. They found that arbitrators who in the past favored a specific industry were 40% more likely to be chosen by those companies than arbitrators who had been more sympathetic to consumers. They also determined that if the arbitrators had been chosen at random, the average monetary award to consumers would have been $50,000 higher.

Remember that there can be little, if any, appeal to an arbitrator’s decision. So the outcome is determined by the arbitrator alone. To be a credible system, the arbitrator must be neutral. Selecting an arbitrator who has a leaning one way or another corrupts the process.

There are, of course, many neutral, professional arbitrators. And there is a difference between forced arbitration, as was the case with Chase, and voluntary arbitratio..  Nonetheless, I favor and advocate for facilitative mediation in what the disputing parties maintain the power to resolve their dispute themselves.

By the way, if you are a Chase cardholder, the company does permit you to opt out of arbitration. You have to do so in writing within 60 days of receiving the bank’s notice.

When beginning a mediation, I usually ask the parties if they have any experience with the process. If a party has I then ask for more information. If that experience turns out to be child custody and visitation mediation, the person usually relates how it was anything but pleasant. I then explain how child custody and visitation mediation requires a particular approach and that their situation was likely mishandled.

And that’s because child custody and visitation mediation varies state by state, so my comments that follow will probably not be true for every location, but will show how this approach is decidedly different.

Previous to the introduction of child custody and visitation mediation, contested custody was probably decided in a highly adversarial courtroom hearing. Frequently, parents seek to show how the other is “unfit.” At that point of disagreement mandatory mediation may be applied.

So, what’s different? First the mediator may not be a neutral third party. The mediator may be charged with protecting the rights of the child or children. The mediator is typically a marriage and family therapist or social worker. In addition to what the parents may bring to the process, the mediator may order such things as reports from child protective service agencies and assessments from psychologists. And after all that, if the parents are still not able to reach an agreement, in some jurisdictions the mediator makes a recommendation to the court, which is typically accepted.

The issues child custody and visitation mediations typically deal with include:

•   Custody procedures for making medical and other decisions concerning the child.

• Visitation rights and requirements including holidays.

• Child support and other financial considerations.

• Relationships with third parties who may have influence on the child.

• Residency restrictions, such as vacations trips.

This can all be very stressful for parents, particularly if they are continuing their own interpersonal conflict. The mediator must help parents understand that while their marital relationship may be terminating, their relationship as co-parents is continuing and they must learn to work together for the best interests of their children.

A long time child custody and visitation mediator once told me that the most difficult holiday to deal with when the children are young is Halloween. She has written agreements where Dad has custody from Elm Street to Jefferson Avenue and Mom takes over at Jefferson Avenue and continues to Peach Street—all in the best interest of the child.