Q: What is the difference between mediation and arbitration?

A: In mediation, the mediator is working with the parties in an effort to bring them to a voluntary agreement – the mediator is facilitating negotiations between the parties and often is non-evaluative, meaning the mediator does not evaluate which side is right or wrong. In arbitration, the arbitrator is acting as a fact-finder and judge – much as in a court trial but with fewer formalities. The arbitration process is evaluative, and the decision of an arbitrator is usually binding on the parties.

Q: What is the difference between a settlement conference and mediation?

A: The terms are often used interchangeably. A settlement conference is a type of mediation, but not all mediations are settlement conferences. Typically, a “settlement conference” consists of a mediation session between parties to litigation whereas many mediations take place outside the context of litigation. Also, while a mediator may conduct the settlement conference in a non-evaluative manner (meaning the mediator does not evaluate which side is right or wrong), it is more common in a settlement conference context for the mediator to give an evaluation of the relative merits of the parties positions in the case. For a more critical examination of the differences, see, The Difference Between Mediation and a Settlement Conference.

Q: What is a “Settlement Counsel” or “ADR Counsel,” and what do they do?

A: ADR Counsel is an attorney who represents a party in a dispute (that is typically either already in or close to going into litigation) with the goal of resolving the matter by agreement without incurring the extraordinary costs of litigation and trial. ADR Counsel typically has extensive experience in litigation, but also has training, special skills and experience in dispute resolution processes such as negotiation, mediation and other methods of ADR. By focusing on dispute resolution, rather than on preparing a case for trial, an experienced ADR professional whose ego is not tied up in “winning” can often save clients thousands, or hundreds of thousands, of dollars and many, many hours of effort by getting the dispute resolved more quickly and, often, on terms more favorable to all parties. For a more in-depth discussion, see, Using Settlement Counsel.

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