Mediation and Arbitration FAQ
Mediation and Arbitration FAQ in the Maryland and Washington DC areas
Frequently Asked Questions
Why is mediation a good idea and how does it differ from arbitration?
I am not familiar with mediation. What is mediation and why does it work?
In essence, mediation involves informal negotiations about disputes or issues with the assistance of a neutral third party who facilitates the negotiation process. Mediation is often successful in resolving disputes because mediation is:
• Voluntary: The parties participate of their own free will and no one will order or compel anything. Instead, the mediator helps the parties to resolve their own problems.
• Informed Participation: The parties have a right to have the mediation process explained to them and have their questions answered before they agree to proceed with mediation.
• Confidential: The parties agree at the outset that nothing they say or write in mediation can be used later in court or elsewhere.
• Informal: A mediation is usually quite informal and a “low stress” environment. Business casual attire and a conference room or home setting away from the courthouse help the parties to feel more relaxed, able to be forthcoming, and often open to good faith discussions. Sometimes the mediation conference is conducted remotely using Zoom or other online video platform rather than meeting in person.
• Impartial and Neutral: The mediator has no power to order or decide anything. Instead, he or she is both impartial and balanced in asking thoughtful questions, discussing the issues and helping identify possible options.
• Self-Determining: The parties’ disputes or issues will only be resolved if the parties themselves eventually agree to the solutions. The mediation process often allows the parties to feel empowered to explore creative and alternative solutions. Without each of the parties’ full buy-in to the solutions, their disputes may remain until a later mediation session or court proceedings.
• Past Disputes vs. Future Solutions: Most successful mediations focus on the future and how parties’ relationships can be improved. Rehashing past problems and hurt feelings will not be successful. Instead, a skilled mediator helps the parties discuss a more successful future for both parties.
More Mediation and Arbitration FAQs
How are mediation and arbitration different?
Mediation is a voluntary process with a neutral person who works to help the parties settle their disputes. The mediator does not make any binding decisions and has no authority to force any actions. An arbitrator, by comparison, is like a private judge who actually decides issues that are binding and can order the parties to take action. Arbitrations usually occur because the parties are obligated to participate by language in a contract, a collective bargaining agreement or simply because the parties want to have their dispute resolved without going to Court. Mediation is less formal, does not have testimony under oath and does not have rules governing the proceeding like arbitration rules.
Visit the Association for Conflict Resolution for more information.
Are there different types of or approaches to mediation?
Some mediators pursue a particular type of mediation that emphasizes certain skills. As mediation has grown as a preferred alternative to court, arbitration, or other formal proceedings, different focuses have evolved on training and academic writing –facilitative, transformative, evaluative, or narrative mediation.
If you are interested, explore the following books: Fisher & Ury, Getting To Yes; Bush & Folger, The Promise of Mediation: “Empowerment and Recognition”; Cloke & Goldsmith, Resolving Personal and Organizational Conflict: Stories of Transformation and Forgiveness.
Should I have a lawyer with me in my mediation?
There is no requirement to have a lawyer involved in your mediation. If the dispute is complex and may be decided by a judge on legal issues, you may want a lawyer involved. The mediator may or may not be a lawyer, but the mediator will not advise you on how the law applies to your facts—that is not the mediator’s role as a neutral.
If you don’t find the answer to your questions on the Mediation and Arbitration FAQs, see the Articles page.
What can the mediator do if there is an imbalance of power or resources between the parties?
Mediators are trained to identify and help minimize the effect of imbalances between the parties in power, wealth, education or other factors that may have contributed to the disputes. If you are concerned about any imbalances, you should discuss your concerns with the mediator.
Are there any opportunities in mediation to tell the mediator something in private or in confidence?
Yes, at times the mediator may want to meet with each of the parties in private –called in “caucus”– or the parties may request such private meetings. In addition, the parties may wish to tell the mediator something in confidence, for the “mediator’s ears only” and not to be shared with the other party. It is important that the parties make clear whether particular information is not to be shared by the mediator with the other party.
What is co-mediation?
Occasionally two or more mediators will collaborate in a mediation, particularly when their working together will help alleviate imbalances of power or resources (e.g., man and woman mediators working together regarding a divorce) or the mediators offer different expertise or experiences that could prove to be helpful.
Will the mediator tell us how to resolve our disputes?
No, the mediator is neither judge nor the parties’ rescuer. He or she will ask thoughtful questions, help frame the issues to be discussed, and facilitate open discussions between the parties. The mediator may offer suggestions but it is important that the parties agree to resolve their own problems and willingly embrace the solutions. The mediator will not evaluate the strengths and weaknesses of the parties’ negotiations unless both parties agree to that role for the mediator. Many mediators do not want to offer their evaluations because they can lose their appearance of impartiality and balance.
If the mediation is successful, what will happen to end the disputes?
If the parties have reached agreement to resolve their disputes, the mediator and parties will prepare a written memorandum of understanding describing how the mediation occurred, who was involved, and what specific steps or changes will be undertaken by the parties in the future to resolve the issues. If the parties’ disputes had already resulted in a lawsuit, arbitration or other formal proceeding, the mediation settlement typically requires that the parties dismiss the lawsuit or other proceeding. The memorandum of understanding is also usually confidential to the parties.
If the mediation is not successful, what happens?
Because mediation is private and confidential, an unsuccessful mediation is treated essentially as if it never occurred. Sometimes the passage of time will put the parties in a more reflective and conciliatory mood, in which case another mediation session may be successful. Don’t worry in advance about a mediation possibly not achieving total success, because nothing ventured, nothing gained. In addition, express any worries or fears in advance to the mediator so they can give you explanations and some comfort about the process.
If the Mediation and Arbitration FAQs don’t answer your question, visit the Articles page, or send Campbell a message.