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Arbitration vs. Mediation - Explaining the Differences

NCJ Number
101419
Journal
Judicature Volume: 69 Issue: 5 Dated: (February-March 1986) Pages: 263-269
Author(s)
J W Cooley
Date Published
1986
Length
7 pages
Annotation
This article describes differences in the mediation and arbitration processes as well as differences in the neutrals' functions and power in the two processes.
Abstract
Mediation uses an impartial intervenor to help disputants voluntarily settle their differences through an agreement that defines their future behavior. The mediation process consists of initiation, preparation, introduction, problem statement, problem clarification, generation and evaluation of alternatives, selection of alternatives, and agreement. Arbitration uses a neutral third party to hear arguments from the disputants, review evidence, and render a decision. The arbitration process generally consists of initiation, preparation, prehearing conferences, hearing, decisionmaking, and award. Arbitrators perform quasi-judicial functions which are governed by formal ethical norms. The arbitrator is generally exempt from civil liability for malpractice. Mediator functions are generally not quasi-judicial, are not bound by ethical restrictions, and are subject to civil litigation for negligence. The arbitrator operates within a procedural and enforcement framework which affords considerable power. The mediator has little if any systemic-based power. 59 footnotes.

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