Mediation vis-a-vis Arbitration

Adjudication

Expedited negotiation

Arbitrators control the outcome.

Parties control the outcome.

Arbitrator is given power to decide.
Final and binding decision.

Mediator has no power to decide.
Settlement only with party approval.

Often extensive discovery is required.

Exchange of information is voluntary and is often limited. Parties exchange information that will assist in reaching a resolution.

Arbitrator listens to facts and evidence and renders an award.

Mediator helps the parties define and understand the issues and each side's interests.

Parties present case, testify under oath.

Parties vent feelings, tell story, engage in creative problem-solving.

Process is formal.
Attorneys control party participation.

Process is informal.
Parties are active participants.

Evidentiary hearings.
No private communication with the arbitrator.

Joint and private meetings between individual parties and their counsel.

Decision based on facts, evidence, and law.

Outcome based on needs of parties.

Result is win/lose award—Relationships are often lost.

Result is mutually satisfactory—A relationship may be maintained or created.

More expensive than mediation, but less expensive than traditional litigation.

Low cost.

Private (but decisions are publicly available).

Private and confidential.