Norris Family Law
We find that many people are confused by these two terms. While both are methods for alternative dispute resolution, they mean very different things. “Mediation” is a process by which the parties to a dispute have a series of meetings with an independent person (the mediator) who acts as a facilitator to help the parties reach a settlement of all their issues through discussion and compromise. The mediator in a family-law matter is typically an attorney experienced in family law who can help the parties identify issues, and assist them in resolving the issues in a way that meets their goals and standards of fairness. The parties’ attorneys typically are not present during the sessions. The mediator does not issue any decisions; if the parties do not reach agreement, the mediator has no power to make any orders, and everything that was said in mediation remains confidential (i.e., cannot be used in any subsequent court proceeding).
“Arbitration” is very different. While it can be less formal than a court proceeding, it usually involves the presentation of evidence, the examination and cross-examination of witnesses, and the presence of attorneys representing their clients. Arbitration is not focused on having the parties reach an agreement. After the parties have presented their case to the arbitrator, he or she then issues a ruling, which is binding on the parties. The arbitrator has decision-making authority just as a judge does; in fact, in some ways the arbitrator has more authority, because an arbitrator’s ruling generally is absolute and not subject to an appeal, and an arbitrator is not bound by the rules of law and evidence that a judge must follow.
Be careful about the distinction between these very different processes. Do not sign up for "arbitration" if you really mean "mediation". Agree to "arbitration" only if you truly want to give the person decision-making authority over you.