I continue to receive questions as to the difference between arbitration and mediation and how to make a decision as to which process one should use. In this post, I’ll try to provide some simple to use guidelines.

In arbitration a neutral party or parties review evidence, hears arguments and renders a decision. It is less formal than a court proceeding but, like a court proceeding, the neutral party will make the decision for the disputing parties. Typically, the arbitrator will have a background in the general disputes, such as construction, labor law, automotive repair and the like. The rules of evidence are generally more relaxed. And typically, there is little opportunity to appeal the arbitrator’s decision. Generally, individuals and corporations choose arbitration when they desire a time-sensitive confidential decision.

Disputes that arise from a contractual arrangement between disputing parties, such as a sales agreement or employment contract, may specify that the parties waive the right to sue and agree to use arbitration. In some contracts, this mandatory arbitration agreement is being challenged. In other cases, when the disputing parties have taken an issue to court, the court may assign an arbitrator to hear the dispute. In some court arbitration, the arbitrator’s decision is entered as the judgment of the court but, in some cases, could be set aside if the parties request a trial.

In mediation, a neutral party facilitates communication between disputing parties to help them work out a mutually agreeable solution. Mediators typically are not required to have expertise in the dispute itself because regardless of the mediator’s style, the final authority for the decision is in the disputing parties’ control. Mediation can be entered into voluntarily most often to preserve a business or personal relationship or when there are communication misunderstandings between the parties. Mediation can also be court-referred, but even so, the court can only mandate that the parties attempt to reach a resolution. The court may not impose a resolution.

Many people have had experience with family court mediation or mandatory mediation over child custody and visitation. While mediation is used for this special form of dispute, the form may not resemble other forms of mediation as the mediator may be skilled in social services and be empowered to make recommendations to the court if the parties do not agree.

 I often stress that in mediation the key is self determination, that is, the parties must make the decision. I describe what the mediator does as an art form. Done skillfully, what the mediator does to help the parties reach their own decision often does not appear obvious to the parties. I have said that the parties may not even recognize what the skilled mediator did to help them reach an agreement.

Which is better? Both processes are valuable dispute resolution procedures. Of course it depends on the parties’ objectives and skills, so use that as your guide when deciding which to choose.

It seems that there is a recognition that one’s culture can have an impact on how one deals with conflicts. That is true, but the problem is that people tend to stereotype other people’s cultural identification.

In a recent neighborhood dispute regarding the cries of a caged dog and disruptive street parking, one neighbor complains that the other confines a dog to an outside cage while also renting rooms to college students who park on the street blocking access to the their mailbox. The conflict issues appear fairly straight-forward.

However, in a pre-mediation interview, the complaining client describes his neighbor as being Chinese and one who appears to house strictly Asian students. He goes on to attribute his neighbor’s behavior to the their Chinese identity. The complainer appears to be White and middle class. During the pre-mediation interviews both parties speak of each other in stereotypical terms:  The one neighbor describes the Chinese-Americans as quiet, shy, standoffish and deceitful. The Chinese-American neighbors describe their middle class White American as arrogant, distant and self-centered. Both increasingly begin to see each other and the conflict in terms of cultural stereotypes. What may have begun as a conflict over a caged dog and parking, now is seen in cultural terms.

Can the mediator ignore the cultural differences the parties are presenting and focus only on the issue of the caged dog and the street parking? I’ve put this question to several mediators.

Some are clear that the issues are just the dog and the parking and say they would restrict the mediation to those topics. Others say that the cultural aspects must be taken into account. Good arguments can be made for either perspective.

Communication research would suggest that one way to deal with this conflict is to help the parties begin to accept a new shared “cultural” identity as “neighbors.” Using this approach the mediator might ask the parties to explain what each understands it means to be neighbors.

Based on how they agree to define one another might make it possible for them to find a way to work out their differences, arrive at some level of understanding and acceptance that makes it possible for them to be neighbors in the best sense of the word.