Mediation and arbitration — what is the difference?

Published by Arshie Law Offices

Who controls the outcome?

In mediation, the parties explore whether they can agree on terms with an impartial mediator’s assistance. The mediator facilitates discussion; the parties decide whether to settle.

In arbitration, the arbitral tribunal generally hears the parties and decides the dispute within the authority of a valid arbitration agreement and the applicable law. An award is different from a negotiated settlement.

What should be checked first?

Start with the contract or court order. Identify any institution, rules, seat, notice requirements and appointment process. Then check whether the dispute is suitable for the proposed route.

Cost, privacy, urgency, safety, the continuing relationship and enforceability can all matter. Confidentiality and legal effect should be checked against the actual framework rather than assumed from the label.

Counsel and neutral roles

An advocate advising a party and an independent mediator or arbitrator have different responsibilities. The proposed role, consent and any conflict must be clear before the process begins.

What happens to an existing case?

A pending court case or contractual deadline does not automatically disappear when discussions begin. Any required stay, referral, extension or formal disposal must be addressed separately.

Before signing terms, check that they identify the parties, obligations, dates, default arrangements and treatment of pending proceedings. The route used affects how the settlement is recorded and enforced.

Prepare for the next step

Keep a complete copy of your records and a short chronology. If there is a live hearing, order or response deadline, mention it before arranging a discussion.

Mediation & arbitration — practice information · Contact Arshie Zuhar