"Knowledge is power. – Nam et ipsa scientia potestas est."
—Sir Francis Bacon
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.
