COMMENT FOR THE DAY #78 8 MAY 2021

MEDIATION

People put Arbitration + Mediation together because they are alternative forms of dispute resolution but the differences are more significant than the similarities.

The two processes have different outcomes; different approaches; different mindsets; different skill sets. The Arbitrator decides who is right/wrong. The Mediator looks for settlement. Quite separate attitude and procedure. The two processes are not brothers + sisters – not even cousins.

One example – Arbitration requires bundles of documents. It is essential. Mediation can look at documents but it is not essential. Remember that the key strategy in a mediation is to move the parties from Positions to Interests. It is less where they are coming from – more where they are going to. So as a Mediator – do resist the request to go through document by document. You do need to understand the dispute but not to decide who is right + who is wrong.

In many ways, mediation is more intriguing + stimulating. Can you change the confrontational mindset of the warring parties? A real challenge for you.