The Wonders of Letting People Decide

Do you know the difference between mediation and arbitration? If the answer is no, this post is for you. We're going to take a brief look at each one, how they compare, and which one I personally often think is better.

First, let's look at arbitration.

Every once in a while, I am called upon to arbitrate lemon-law cases. That's when a consumer has purchased a vehicle and, in the ensuing weeks or months, decides the car is just no good. Something or another isn't working right, the consumer doesn't believe the manufacturer has properly addressed it, and they would like a refund.

There's more to it, but that is the essence -- and it is the arbitrator's role to determine who is right and who is wrong. I listen carefully as both sides present all the evidence and arguments they can muster. For the arbitrator, unfortunately, there is no middle ground, no shades of gray. One side must be found to be right and the other side wrong. Those are my only two choices. So for the two parties, it's really all or nothing. One will go home a winner, the other a loser.

Now, let's look at mediation. Imagine a noise dispute between two neighbors, a type of case I have often mediated. Here's what that process might look like: each side presents to the mediator and the other party their "story" -- or in other words, what has taken place or happened to them as they see it. This may include evidence, but it also includes a lot about how they feel about the situation and perhaps other matters related more broadly to their present life.

Often, the parties think the mediator is there to decide who is right and who is wrong, but in fact a mediator does no such thing. (We tell them at the outset, but still it takes time for that fact to sink in.) It is the parties themselves who will decide together -- as much as they're able -- what is going on and what they think they should do about it.

There are some other key differences from arbitration. For example, mediation is a purely voluntary process from start to finish. Each side voluntarily agrees to participate -- and either or both of them can walk away at anytime. If the parties do agree to a resolution, it's entirely their choice.

Here's what I believe is the best part about mediation: the solution comes from the parties themselves. It does no good to try and convince the mediator they are right. The mediator is not the decider. It is the parties who have to work with -- and listen to -- each other to find a solution that works for both of them.

Sounds like a lot of work for the parties? Maybe. Yet which would you prefer: to come up with your own solution? Or have someone impose it on you?

Most mediators will also tell you that the best solutions come about when they come from the two sides themselves, because a) they understand the situation far better than any outsider will and b) they understand far better than anyone else what they feel is the appropriate solution for them. Perhaps someone else might come to a different conclusion, but all that counts is a solution that works for these two sides, here and now. And when they are the ones who come up with the solution, they are also far more likely to follow through with it.

Finally, in a mediation, the solution is one in which both sides can win. Again, unlike arbitration where there can only be one winner, mediation is an approach that can bring a satisfactory (or even satisfying) conclusion to one and all.


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