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 interchangeably. The Oxford English
Dictionary provides as one historical
definition of arbitration: "to act as for-
mal arbitrator or umpire, to mediate (in
a dispute between contending parties)."
The Statutes of Edward III (1606) refer-
ring to what today obviously would be
called a commercial arbitrationpanel,
provided: "And two Englishmen, two of
Lombardie and two of Almaigne shall
(be) chosen to be mediators of questions
between sellers and buyers." '

,oTR ATiON 0IAT/Ol Modern labor relations statutes tend

to perpetuate this confusion. As one-
commentator has observed:

Some statutes, referring to a process as "me-

diation" describe formal hearings, with wit-
nesses testifying under oath and transcripts
made, require reports and recommenda-
tions for settlement to be made by the neu-
tral within fixed periods, and either state or
imply the finality of the "mediator's recom-
mendations." In one statute the neutral
third parties are called, interchangeably,2
mediators, arbitrators and impasse panels.
The Federal Mediation and Concilia-
tion Service (note the absence of "arbi-
tration" in its title) performs a basic
arbitration function by maintaining a
roster from which the Service can nomi-
nate arbitrators to the parties and sug-
gest "certain procedures and guides that
[the Service believes] will enhance the
'3
acceptability of arbitration.
The National Mediation Board (em-
phasis added) performs important func-
tions in the promotion of arbitration
and the selection of arbitrators for the
railroad and airline industries.'
Libraries also assist in perpetuating
the arbitration/mediation definitional
charade. Search under "mediation" and
you will invariably be referred to "arbi-
tration." In the midst of this confusion-

Arbitration vs. mediation- even among congressional draftsmen-

it is time to explain the differences
between the processes.

explaining the differences The most basic difference between the

two is that arbitration involves a deci-
sion by an intervening third party or
by John W. Cooley "neutral;" mediation does not.
Another way to distinguish the two is
by describing the processes in terms of the
This article is adapted from a version that appeared neutral's mental functions. In arbitration,
in the CHICAGO BAR RECORD (January-February,
and business professionals are
1985).
I. Robins, A GUIDE FOR LABOR MEDIATORS 6
(Honolulu: University Press of Hawaii, 1976).
A unaware of the differences be-
n amazing
tween numberand
arbitration of lawyers
media-
the neutral employs mostly "left brain" or
"rational" mental processes-analytical,
2. Id. tion. Their confusion is excusable. mathematical, logical, technical, adminis-
3. Elkouri and Elkouri, How ARBITRATION In the early development of the Eng- trative; in mediation, the neutral employs
WORKS 24 (Washington, D.C.: BNA, 3rd ed. 1973).
4. Id. at 25. lish language, the two words were used mostly "right brain" or "creative" mental
processes-conceptual, intuitive, artistic, between two farmers. Today, arbitration court-annexed proceeding, court rule or
holistic, symbolic, emotional. is being used more broadly for dispute court order.
The arbitrator deals largely with the settlement both in labor-management A submission must be signed by both
objective; the mediator, the subjective. relations and in commerical transactions. parties and is used where there is no pre-
The arbitrator is generally a passive Aside from its well-known use in resolv- vious agreement to arbitrate. It often
functionary who determines right or ing labor disputes, arbitration is now names the arbitrator (or method of ap-
wrong; the mediator is generally an becoming widely used to settle inter- pointment), contains considerable detail
active functionary who attempts to move company disputes in various industries, regarding the arbitrator's authority, the
the parties to reconciliation and agree- including textile, construction, life and procedure to be used at the hearing,
ment, regardless of who or what is right casualty insurance, canning, livestock, air statement of the matter in dispute, the
or wrong. transport, grain and feed and securities.' amount of money in controversy, the
Because the role of the mediator in- Simply defined, arbitration is a process remedy sought and other matters.
volves instinctive reactions, intuition, in which a dispute is submitted to a third On the other hand, where the descrip-
keen interpersonal skills, the ability to party or neutral (or sometimes a panel of tion of a dispute is contained in an'
perceive subtle psychological and be- three arbitrators) to hear arguments, re- agreement and the parties have agreed in
havioral indicators, in addition to logic view evidence and render a decision.' 0 advance to arbitrate it, arbitration may
and rational thinking, it is much more Court-annexed arbitration, a relatively be initiated unilaterally by one party
difficult than the arbitrator's role to per- new development, is a process in which serving upon the other a written "de-
form effectively. 5 It is fair to say that judges refer civil suits to arbitrators to mand" or "notice" to arbitrate.
while most mediators can effectively per- render prompt, non-binding decisions. If However, even where an agreement
form the arbitrator's function, the con- a particular decision is not accepted by a contains a "demand" or "notice" arbi-
verse is not necessarily true. losing party, a trial de novo may be held tration clause, parties sometimes choose
Besides these differences the two pro- in the court system. However, adverse also to execute a submission after the
cesses are generally employed to resolve decisions sometimes lead to further nego- dispute has materialized. In the court-,
two different types of disputes. Media- tiation and pre-trial settlement." annexed situation, a lawsuit is manda-
tion is used where there is a reasonable The arbitration process, court-annexed torily referred to an arbitration track and
likelihood that the parties will be able to or otherwise, normally consists of six the parties must select an arbitrator from
reach an agreement with the assistance stages: initiation, preparation, prehear- a court-maintained roster or otherwise
of a neutral. Usually, mediation is used ing conferences, hearing, decisionmak- by mutual agreement.'2
when parties will have an ongoing rela- ing, and award. Several types of tribunals and methods
tionship after resolution of the conflict. Initiation. The initiation stage of arbi- of selecting their membership are avail-
Arbitration, on the other hand, is gener- tration consists of two sub-stages: initi- able to parties who wish to arbitrate.
ally appropriate for use when two condi- ating the proceeding, and selecting the Parties may choose between the use of a
tions exist: there is no reasonable likeli- arbitrator. An arbitration proceeding "temporary" or "permanent" arbitrator.
hood of a negotiated settlement; and may be initiated either by: submission; They can also choose to have single or
there will not be a continuing relation- "demand" or "notice;" or, in the case of a multiple arbitrators. Since success of the
6
ship after resolution.
If the two processes are to be used in 5. As one American professional mediator put Mediation Board: "Mediation and arbitration...
it, the mediator "has no science of navigation, no have conceptually nothing in common. The one
sequence, mediation occurs first, and if fund inherited from the experience of others. He is a [mediation] involves helping people to decide for
unsuccessful, resort is made to arbitra- solitary artist recognizing, at most, a few guiding themselves, the other involves helping people by
stars and depending mainly on his personal power deciding for them." Meyer, supra n. 5, at 164, as
tion.7 Viewed in terms of the judicial of divination." Meyer, Functionof the Mediatorin quoted in Gulliver, DISPUTES AND NEGOTIATIONS, A
process, arbitration is comparable to a Collective Bargaining, 13 INDUS. &LAB. REL. REV. CROSS-CULTURAL PERSPECTIVE, 210 (New York: Aca-
159 (1960). demic Press, 1979).
trial and mediation is akin to a judicial 6. In labor relations arbitrations, of course, con- 9. Cooley, Arbitration as an Alternative to Fed-
settlement conference. They are as dif- dition (2) is normally not present. Labor disputes eral Litigation in the Seventh Circuit,REPORT OF
are generally divided into two categories: rights THE SUBCOMMITTEE ON ALTERNATIVES TO THE PRES-
ferent as night and day.8 The differences disputes and interest disputes. Disputes as to ENT FEDERAL COURT SYSTEM, SEVENTH CIRCUIT AD

can best be understood by discussing "rights" involve the interpretation or application Hoc COMMITTEE TO STUDY THE HIGH COST OF LIT
of existing laws, agreements or customary prac- IGATION, 2 (July 13, 1978).
them in terms of the processes of arbitra- tices, disputes as to "interests" involve controver- 10. Paths to Justice: Major PublicPolicy Issues
tion and mediation. sies over the formation of collective agreements or of Dispute Resolution, REPORT OF THE AD Hoc
efforts to secure them where no such agreement is PANEL ON DISPUTE RESOLUTION AND PUBLIC POLICY,
yet in existence. Elkouri and Elkouri, supran. 3, at Appendix 2 (Washington, D.C.: National Institut6
The arbitration process 47. for Dispute Resolution, October, 1983).
7. Because of ethical considerations, the arbitra- 11. Id. See also EVALUATION OF COURT-ANNEXED
Arbitration has had a long history in this tor and mediator normally are different persons. It ARBITRATION IN THREE FEDERAL DISTRICT COURTS

country, going back to procedures car- should also be noted that mediation is frequently (Washington, D.C.: Federal Judicial Center, 1981).
effective when it is attempted, with the concurrence 12. Cooley, supra n. 9, at 4, Elkouri and Elkouri,
ried over into the Colonies from mercan- of the parties, during the course of an arbitration supra n. 3, at 183-86. Domke on Commericial Arbi-
tile England. George Washington put an with a neutral other than the arbitrator serving as tration. §§14:00-14:05 (Rev. Ed. 1984). Arbitrators, if
the mediator. Often the unfolding of the opponent's chosen from a list maintained by an arbitration
arbitration clause in his last will and evidence during the course of arbitration leads to a organization or court-maintained roster, are nor-
testament to resolve disputes among his better appreciation of the merits of their respective mally compensated at the daily rate fixed by the
positions and hence an atmosphere conducive to organization or the court. Arbitrators selected inde-
heirs. Abraham Lincoln urged lawyers settlement discussions. pendently by the parties are compensated at the
to keep their clients out of court and 8. The stark distinction between mediation and daily or hourly rate at which they mutually agree.
arbitration was well made by a professional media- In such cases, the parties equally share the expense
himself arbitrated a boundary dispute tor who became chairman of the New York State of the arbitrator's services.

264 Judicature Volume 69, Number 5 February-March,1986

arbitration process often hinges on the practice. A party requiring an interpre-
expertise of the tribunal, parties gener- ter has the duty to arrange for one. Wit-
ally select a tribunal whose members nesses testifying at the hearing may also
possess impartiality, integrity, ability and be required to take an oath if required by
experience in the field in which the dis- law, if ordered by the arbitrator, or on
pute arises. Legal training is often help- demand of any party.18
ful but not indispensable. Opening statements are made orally by
Information concerning the qualifica- each party in a brief, generalized format.
tions of some of the more active arbitra- Arbitration is They are designed to acquaint the arbitra-
tors is contained in the DirectoryofA rbi- tor with each party's view of what the
trators, prepared by the Bureau of
a process dispute is about and what the party ex-
National Affairs, Inc., and in Who's in which a pects to prove by the evidence. Sometimes
Who (of arbitrators) published by Pren- an arbitrator requests each party to pro-
tice-Hall, Inc. Also, the Federal Media- dispute is vide a short written opening statement
tion and Conciliation Service (FMCS), and issue statement prior to the hearing.
the National Mediation Board (NMB)
submitted to Occasionally, a respondent opts for mak-
and the American Arbitration Associa- a third party ing an opening statement immediately
prior to presenting initial evidence.' 9
tion (AAA) provide biographical data on
arbitrators.' 3 to render There is no set order by which parties
Preparation. The parties must thor- present their cases in arbitration, al-
oughly prepare cases for arbitration.
a decision. though in practice the complaining party
Obviously, a party must fully under- normally presents evidence first. The par-
stand its own case to communicate effec- ties may offer any evidence they choose,
tively to the arbitrator. Depending on the including personal testimony and affi-
nature of the case, prehearing discovery davits of witnesses. They may be required
may be necessary and its permissible to produce additional evidence the arbi-
extent is usually determined by the arbi- trator deems necessary to determine the
trator. The advantages of simplicity and dispute. The arbitrator, when authorized
utility of the arbitration mode normally I I by law, may subpoena witnesses or doc-
weigh against extensive discovery. Dur- ing schedules, if necessary, are set on uments upon his or her own initiative or
ing this stage, the parties also enter.into motions attacking the validity of claims by request of a party. The arbitrator also
fact stipulations where possible. 4 or of the proceeding. But generally, brief- decides the relevancy and materiality of
Ordinarily, most or all of the arbitra- ing is minimized to preserve the effi- all evidence offered. Conformity to legal
tor's knowledge and understanding of a ciency of the process. Discussion of the rules of evidence is unnecessary. The
case is based upon evidence and argu- underlying merits of claims or defenses arbitrator has a right to make a physical
20
ments presented at the arbitration hear- of the parties are avoided during a pre- inspection of premises.
ing. However, the arbitrator does have hearing conference. Ex parte conferen- The parties make closing arguments,
some "preparation" functions. Generally, ces between the arbitrator and a party are usually limited in duration. Occasion-
where no tribunal administrator (such as not permitted.17 ally, the arbitrator requests post hearing
AAA) is involved, the arbitrator, after The hearing. Parties may waive oral briefs. When this occurs, the parties usu-
2
accepting the office, designates the time hearing and have the controversy deter- ally waive oral closing arguments. '
and place of the hearing, by mutual agree- mined on the basis of documents only. Decisionmaking. When the issues are
ment of the parties if possible. The arbitra- However, an evidentiary-type hearing in not complex, an arbitrator may render
tor also signs an oath, if required in the the presence of the arbitrator is deemed an immediate decision. However, when
particular jurisdiction, and determines imperative in virtually all cases. Since ar- the evidence presented is voluminous
whether the parties will have representa- bitration is a private proceeding, the hear- and/or time is needed for the members of
tion, legal or otherwise, at the hearing.' 5 ing is not open to the public as a rule but an arbitration panel to confer, it might
Prehearing conferences. Depending on all persons having a direct interest in the require several weeks to make a decision.
the complexity of the matter involved, case are ordinarily entitled to attend. The award is the arbitrator's decision.
the arbitrator may wish to schedule a A formal written record of the hearing It may be given orally but is normally
prehearing conference, which is nor- is not always necessary; use of a reporter written and signed by the arbitrator(s).
mally administrative in nature. 16 Brief- is the exception rather than the general Awards are normally short, definite, cer-
tain and final as to all matters under sub-
13. Elkouri and Elkouri, supra n. 3, at 24-25. setting of firm oral argument and hearing dates. mission. Occasionally, they are accom-
14. Elkouri and Elkouri, supra n. 3, at 197; (for 17. Cooley, supra n. 9, at 4-5; Elkouri and Elkouri,
preparation checklist see pp. 198-99); Domke, supra supra n. 3, at 186-90. panied by a short well-reasoned opinion.
n. 12, §§24:01 and 27:01. 18. Cooley, supra n. 9, at 5.
The award is usually issued no later than
15. Id. 19. Elkouri and Elkouri, supra n. 3, at 224-25.
16. Some of the matters which might be discussed 20. Cooley, supra n. 9, at 5; Elkouri and Elkouri, 30 days from the closing date of the hear-
at a prehearing conference are: whether discovery is supra n. 3, at 223-28. ing. When a party fails to appear, a
needed and, if so, scheduling of same; motions that 21. Elkouri and Elkouri, supra n. 3, at 225.
need to be filed and briefed or orally argued; and the 22. Cooley, supra n. 9, at 6. default award may be entered. 22 Depend-
ing on the nature of the award (i.e., bind- clout of a decision, a mediator does not,
ing), it may be judicially enforceable and, by virtue of position, ordinarily com-
to some extent, reviewable. The losing mand the parties' immediate trust and
party in a court-annexed arbitration is respect; the mediator earns them through
entitled to trial de novo in court. a carefully orchestrated and delicately
executed ritual of rapport-building.
The mediation process In mediation, Every competent mediator has a per-
Mediation is a process in which an impar- sonal style. The content of the media-
tial intervenor assists the disputants to an impartial tor's opening remarks is generally cru-
reach a voluntary settlement of their dif-
ferences through an agreement that de-
intervenor cial to establishing rapport with the
parties and the respectability of the
fines their future behavior.23 The process helps the mediator and the process.
generally consists of eight stages: initia- Opening remarks focus on: identify-
tion, preparation, introduction, problem parties reach ing the mediator and the parties; explain-
statement, problem clarification, genera-
tion and evaluation of alternatives, selec-
a voluntary ing the procedures to be followed (in-
cluding raucusing), 2 describing the
24
tion of alternative(s), and agreement. settlement. mediation function (if appropriate) and
Initiation. The mediation process may emphasizing the continued decisionmak-
be initiated in two principal ways: par- ing responsibility of the parties; and
ties submit the matter to a public or pri- reinforcing the confidentiality and integ-
vate dispute resolution organization or to rity of the process.2 9 When appropriate,
a private neutral; or the dispute is re- the mediator might invoke the commun-
ferred to mediation by court order or rule ity and public interest in having the dis-
in a court-annexed mediation program. I pute resolved quickly and emphasize the
In the first instance, counsel for one of The mediator sets the date, time and
interests of the constituents in the suc-
the parties or, if unrepresented, the party place for the hearing at everyone's con- cessful conclusion of the negotiations.3 "
25
may contact the neutral organization or venience. Finally, the mediator must assess the
individual and the neutral will contact Introduction. In the mediation pro- parties' competence to participate in the
the opposing counsel or party (as the cess, the introductory stage may be the process. If either party has severe emo-
case may be) to see if there is interest in most important.2 6 It is in that phase, par- tional, drinking, drug, or health prob-
attempting to mediate the dispute. ticularly the first joint session, that the lems, the mediator may postpone the
Preparation. As in arbitration, it is of mediator establishes his or her accepta- proceeding. If the parties are extremely
paramount importance that the parties bility, integrity, credibility and neutral- hostile and verbally abusive, the media-
to a dispute in mediation be as well ity. The mediator usually has several tor must endeavor to calm them, by pre-
informed as possible on the background objectives to achieve initially. They are: liminary caucusing if necessary."'
of the dispute, the claims or defenses and establish control of the process; deter- Problem statement. There are essen-
the remedies they seek. The parties mine issues and positions of the parties; tially two ways to open a discussion of
should seek legal advice if necessary, and get the agreement-forging process the dispute by the parties: Both parties
although a party's lawyer might attend a started; and encourage continuation of give their positions and discuss each is-
27
typical nonjudicial mediation, he or she direct negotiations. sue as it is raised; or all the issues are first
normally does not take an adversary role Unlike a judge in a settlement confer- briefly identified, with detailed exposi-
but is rather available to render legal ence or an arbitrator who wields the tion of positions reserved until all the
advice as needed.
The mediator should also be well- 23. Salem, Mediation- The Concept and the Pro- the opportunity for mediator preparation. A media-
cess, in INSTRUCTORS MANUAL FOR TEACHING CRITI- tor's sense of timing is the ability to judge the psy-
informed about the parties and the fea- CAL ISSUES (1984, unpublished). See generally Sim- chological readiness of an individual or group to
tures of their dispute and know some- kin, MEDIATION AND THE DYNAMICS OF COLLECTIVE respond in the desired way to a particular idea,
BARGAINING 25 (BNA, 1971). Court-annexed media- suggestion or proposal. Meagher, supra n. 25, at 5,
thing about: tion is a process in which judges refer civil cases to a see also Maggiolo, TECHNIQUES OF MEDIATION IN
" the balance of power; neutral (mediator or master) for settlement pur- LABOR DISPUTES 62 (Dobbs Ferry, NY: Oceana Pub-
poses. It also includes in-court programs in which lications, 1971). The kinds of preparatory informa-
" the primary sources of pressure ex- judges perform the settlement function full-time. tion needed by the mediator are discussed in the text
erted on the parties; 24. See generally Ray, The Alternative Dispute supra. In many instances, such information is not
Resolution Movement, 8 PEACE AND CHANGE 117 available prior to intervention and thus it must be
* the pressures motivating them (Summer 1982). The process of mediation and the delicately elicited by the mediator during the intro-
roles and strategies of mediators have been gener- ductory stage.
toward agreement as well as pressures ally neglected in studies of negotiation. As one 27. Meagher, supra n. 25, at 26-27. Wall, Media-
blocking agreement; author remarked, "Mediation still remains a poorly tion, An Analysis, Review and ProposedResearch,
e the economics of the industry or par- understood process." Gulliver, supra n. 8. 25 J. CONFLICT RE. 157, 161 (1981).
25. Meagher, "Mediation Procedures and Tech- 28. Caucusing is an ex parteconference between
ticular company involved; niques," 18-19 (unpublished paper on file in the a mediator and a party.
Office of the General Counsel, FMCS, Washington, 29. Meagher, supra n. 25, at 28; Maggiolo, supra
e political and personal conflicts D.C.). Mr. Meagher is a former commissioner of n. 26, at 42-44.
within and between the parties; FMCS. 30. Id.
* the extent of the settlement author- 26. The success of the introductory stage is di- 31. Ray, supra n. 24, at 121; Maggiolo, supra n.
rectly related to two critical factors: (1) the appropri- 26, at 52-54.
ity of each of the parties. ate timing of the mediator's intervention, and (2)

266 Judicature Volume 69, Number 5 February-March,1986

issues have been identified. The second produce the optimum results with which
procedure is preferred; the first approach each can live."
often leads to tedious time-consuming Agreement. Before the mediation is ter-
rambling about insignificant matters, minated, the mediator summarizes and
sometimes causing the parties to become clarifies, as necessary, the terms of the
32
more entrenched in their positions. agreement reached and secures the assent
Generally, the complaining party tells The arbitrator's of each party to those terms; sets a fol-
his or her "story" first. It may be the first low-up date, if necessary; and congratu-
time that the adverse party has heard the function is lates the parties on their reasonableness.
full basis for the complaint. The media- The mediator does not usually become
tor actively and empathically listens,
quasi-judicial involved in drafting a settlement agree-
taking notes if helpful, using listening in nature. ment. This task is left to the parties
themselves or their counsel. The agree-
techniques such as restatement, echo
and non-verbal responses. Listening is ment is the parties', not the mediator's.3 9
the mediator's most important dispute- A mediator's patience, flexibility and
33
resolving tool. creativity throughout this entire process
The mediator also: are necessary keys to a successful reso-
e asks open-ended and closed-ended lution.
questions at the appropriate time and in
a neutral fashion; close matters which the parties shared The "neutral's" functions
e obtains important "signals" from with the mediator in confidence. They To fully appreciate the differences (or
the behavior and body movements of the are assisted in grouping and prioritizing the similarities) between the two pro-
35
parties; issues and demands. cesses, and to evaluate the appropriate
" calms a party, as necessary; Generation and evaluation of alterna- use of either process, it is instructive to
" clarifies the narration by focused tives. In this stage, the mediator employs focus on considerations which exist at
questions; two fundamental principles of effective their interface-the function and power
• objectively summarizes the first par- mediation: creating doubt in the minds of the "neutral." This is a particularly
ty's story; of the parties as to the validity of their important exercise to acquire a realistic
* defuses tensions by omitting dispar- positions on issues; and suggesting alter- expectation of the result to be obtained
aging comments from the summary; native approaches which may facilitate from each process.
* determines whether the second party agreement.3 6 These are two functions The arbitrator's function is quasi-
understands the first party's story; which parties to a dispute are very often judicial in nature and, because of this,
e thanks the first party for his or her unable to perform by themselves. To an arbitrator is generally exempt from
contribution. carry out these functions, the mediator civil liability for failure to exercise care
The process is repeated with the sec- has the parties separately "brainstorm" or skill in performing the arbitral func-
34
ond party. to produce alternatives or options; dis- tion.4 0 As a quasi-judicial officer, the
Problem clarification. It is in this cusses the workability of each option; arbitrator is guided by ethical norms in
stage that the mediator culls out the true encourages the parties by noting the the performance of duties. For example,
underlying issues in the dispute. Often probability of success, where approp- an arbitrator must refrain from having
the parties to a dispute intentionally riate; suggests alternatives not raised by any private (ex parte)consultations with
obfuscate the core issues. The mediator the parties and then repeats the three a party or with an attorney representing
37
pierces this cloud-cover through separ- previous steps. a party without the consent of the oppos-
4
ate caucuses in which he or she -asks Selection of alternative(s). The media- ing party or counsel. '
direct, probing questions to elicit infor- tor may compliment the parties on their Moreover, unless the parties agree oth-
mation which one party would not dis- progress and use humor, when appropri- erwise, the arbitration proceedings are
close in the presence of the other party. ate, to relieve tensions; assist the parties private and arbitrators must take appro-
In a subsequent joint session, the media- in eliminating the unworkable options; priate measures to maintain the confi-
tor summarizes areas of agreement or and help the parties determine which of dentiality of the proceedings. 42 It has
disagreement, being careful not to dis- the remaining workable solutions will generally been held that an arbitrator
32. Meagher, supra n. 25, at 30; Maggiolo, supra separate the people from the problem; (2) focus on
may not testify as to the meaning and
n. 26, at 47. interests, not positions; (3) invent options of mut- construction of the written award.43
33. Ray, supran. 24, at 121; Salem, supran. 23, at ual gain; (4) insist on using objective criteria.
4-5; Robins, supran. 1,at 27; Maggiolo, supran. 26, 37. Ray, supran. 24, at 122. Meagher, supra n. 25,
In contrast, a mediator is not normally
at 48-49. at 48-49, describes additional techniques of "plant- considered to be quasi-judicial, unless he
34. Ray, supra n. 24, at 121. ing seeds," "conditioning," and "influencing ex-
35. Id. at 121-22; Meagher, supra n. 25, at 57-58; pectations."
or she is appointed by the court as, for
Robins, supra n. 1,at 43-44; Maggiolo, supra n. 26, 38. Ray, supra n. 24, at 122. example, a special master. Some courts
at 49-50. 39. Id. have extended the doctrine of immunity
36. Maggiolo, supra n. 26, at 12. Other basic 40. Domke, supra n. 12, §23:01, at 351-53.
negotiation principles which some mediators use 41. Id. §24:05, at 380. to persons termed "quasi-arbitrators"-
to advantage throughout the mediation process are 42. Id.
found in Fisher and Ury, GETrING TO YES, (New 43. Id. §23:02, at 355.
persons empowered by agreement of the
York: Penguin Books, 1983. Those principles are: (1) parties to resolve disputes arising be-
 a strong argument can be made that the precludes the parties from again litigat-
injury from disclosure of a confidential ing the same subject. 3 The award can be
settlement proceeding is greater than the challenged in court only on very narrow
benefit to be gained by the public from grounds. In some states the grounds
nondisclosure.48 relate to partiality of the arbitrator or to
A mediator Finally, unlike the arbitrator, the per- misconduct in the proceedings, such as.
formance of whose function may be en- refusal to allow the production of evi-
has little hanced by knowledge, skill, or ability in a dence or to grant postponements, as well
systemic-based particular field or industry, the mediator as to other misbehavior in conducting
need not be an expert in the field which the hearings so as to prejudice the inter-
power. encompasses the subject of the dispute. ests of a party.54
Expertise may,, in fact, be a handicap, if A further ground for challenge in
the parties look wrongly to the mediator some states is the failure of the arbitrator
as an advice-giver or adjudicator.49 to observe the limits of authority as fixed
by the parties' agreement-such as deter-
Comparative power mining unsubmitted matters or by not
tween them.44 Although the law is far The arbitrator derives power from many dealing definitely and finally with sub-
from clear on this point, a very persuasive sources. The person may be highly re- mitted issues. 55 In Illinois, as in most
argument may be advanced that media- spected in a particular field of expertise states, a judgment entered on an arbitra-
tors are generally immune from lawsuits or widely renowned for fairness. But tion award is enforceable "as any other
relating to the performance of their medi- aside from these attributes which eman- judgment." 6 Thus, from a systemic per-
ation duties where the agreement under ate from personal talents or characteris- spective, the arbitrator is invested with a
which they perform contains a hold- tics, the arbitrator operates within a pro- substantial amount of power.
harmless provision or its equivalent. cedural and enforcement framework In striking contrast, with the excep-
In absence of such contractual provi- which affords considerable power, at least tion of a special master appointed by the
sion, it would appear that a functionary from the perspective of the disputants. court or a neutral appointed by some
such as a mediator, selected by parties to Under certain circumstances, arbitrators governmental body, the mediator has lit-
perform skilled or professional services, may possess broad remedy powers, in- tle if any systemic-based power. Most if
would not ordinarily be immune from cluding the power, though rare, to grant not all of a mediator's power is derived
charges of negligence but rather is re- injunctive relief.50 They normally have from experience, demonstrated skills and
quired to work with the same skill and subpoena power, and generally they have abilities, and a reputation for successful
care exercised by an average person en- no obligation to anyone, not even "to the settlements.
gaged in the trade or profession in- court to give reasons for an award. "51 Any particular mediator may wield
volved.45 In general, a valid arbitration award power by adopting a particular role on
Of course, weighing heavily against a constitutes a full and final adjustment of what might be described as a continuum
finding of negligence on the part of a the controversy.5 2 It has all the force and representing the range of strengths of
mediator is the intrinsic nature, if not the effect of an adjudication, and effectively intervention: from virtual passivity, to
essence, of the mediation process which
invests the parties with the complete 44. See Craviolini v. Scholer & Fuller Associated native Dispute Resolution: ConfidentialProblem-
power over their destiny; it also guaran- Architects, 89 Ariz. 24,357 P.2d 611(1960), where an Solving or Every Man's Evidence? Alternatives to
architect was deemed to be a "quasi-arbitrator" the High Costof Litigation,2 LAW &Bus. INC./CTR.
tees any party the right to withdraw from under an agreement with the parties and therefore FOR PUBLIC RESOURCES, 5 (May, 1984). Parties can
the process and even to eject the mediator entitled to immunity from civil liability in an assist the preservation of confidentiality of their
46 action brought against him by either party in rela- mediation proceedings by reducing to writing any
during any pre-agreement stage. tion to the architect's dispute-resolving function. expectations or understanding regarding the confi-
Also, in contrast to arbitrators, certain Compare Gammell v.Ernst &Ernst, 245 Minn. 249, dentiality of the proceedings and by being careful to
72 N.W.2d 364 (1955), where certified public ac- protect against unnecessary disclosure both within
ethical restrictions do not apply to medi- countants, selected for the specific purpose of mak- their respective constituencies and the outside
ators. Mediators are permitted to have ex ing an examination and of auditing the books of a world, id. at 9.
corporation to ascertain its earnings, were held not 48. See, e.g., NLRB v. Joseph Macaluso, 618 F.2d
parte conferences with the parties or to have acquired the status of arbitrators so as to 51 (9th Cir. 1980); Pipefitters Local 208 v. Mechani-'
counsel. Indeed, such caucuses, as they create immunity for their actions in the perfor- cal Contractors Assn. of Colorado, 90 Lab. Cas.
mance of such service, simply because the report (CCH) 12,647 (D. Colo. 1980).
are called, are the mediator's stock-in- was to be binding upon the parties. 49. Phillips and Piazza, supra n. 46, at 33.
trade. Furthermore, while one of the 45. Domke, supra n. 12, §23:01, at 352-53. 50. In re Ruppert, 29 LA 775, 777 (N.Y. Ct. App.
46. As two professional mediators have poig- 1958); In re Griffin, 42 LA 511 (N.Y. Sup. Ct. 1964).
principal advantages of a privately-con- nantly commented: "Unlike arbitration and other See generally Elkouri and Elkouri, supra n. 3, at
ducted mediation is the non-public or means of adjudication, the parties retain complete 241-51.
control... If they do not like the mediator, they get 51. Domke, supran. 12, §29:06, at 436.
confidential nature of the proceedings, another one. If they fail to produce results, they may 52. Donoghue v. Kohlmeyer &Co., 63 Ill. App. 3d
and although Rule 408 of the Federal end the mediation at any time." Phillips and 979, 380 N.E.2d 1003, 20 111. Dec. 794 (1978).
Piazza, How to Use Mediation, 10 A.B.A.J. OF SEcr. 53. Borg, Inc. v. Morris Middle School Dist. No.
Rules of Evidence and public policy OF. LIT. 31 (Spring, 1984). 54, 3 111.App. 3d 913, 278 N.E.2d 818 (1972).
considerations argue in favor of confi- 47. See Grumman Aerospace Corp. v. Titanium 54. Domke, supra n. 12, §33:00, 463.
Metals Corp., 91 F.R.D. 84 (E.D. N.Y. 1981) (Court 55. Id. In Illinois, the court's power to vacate or
dentiality, the current state of the law granted a motion to enforce a subpoena duces modify arbitration awards is narrowly circum-
does not provide a guarantee of such tecum involving a report prepared by a neutral scribed. See ILL. REV. STAT. ch. 10, 112, 113
fact-finder on the effects of certain price-fixing (1981).
confidentiality. 47 However, in most cases activities). Seegenerally Restivo'and Mangus, Alter- 56. ILL. REV. STAT. ch. 10, 114 (1981).

268 Judicature Volume 69, Number 5 February-March,1986

Table 1: A comparison of arbitration/mediation processes And to the same extent, the result is
Arbitration Mediation
enforceable by one party against another.
As a practical matter, where a party
1. InItiation 1. Initiation
Submission Submission breaches an agreement or contract which
Demand or notice Court rule or order is the product of mediation and the
Court rule or order Assignment or selection of mediator
Selection of arbitrator
agreement is not salvageable, prudence
2. Preparation 2. Preparation
would seem to dictate that in most cases
Discovery Usually, no discovery the underlying dispute-and not the
Prehearing conference Parties obtain background information on claims,
Motions defenses, remedies breach of agreement-should be litigated.
Stipulations Mediator obtains information on parties
Arbitrator's oath and history of dispute Summary
Arbitrator's administrative duties Usually, no mediator oath
Arbitrator does not seek out information It is clear that both the functions and the
about parties or dispute
levels of power of the arbitrators and
3. Prehearng conference 3. Introduction
Administrative Mediator:
mediators are dramatically different.
Scheduling Conducts ex parte conferences, if necessary, for calming Counsel must assess the nature of the
No discussion of underlying merits of claims or defenses Gives opening descriptive remarks
No ex parte conferences Develops trust and respect
dispute and the personalities of the dis-
Emphasizes importance of successful negotiations putants prior to determining which pro-
Helps parties separate the people from the problem
cess, arbitration or mediation, has the
4. Hearing 4. Problem statement
Not generally open to public Confidential proceeding, no written record
best chance to achieve a successful reso-
Written record, optional Parties do not speak under oath lution of the particular conflict.
Witnesses and parties testify under oath Issues identified
Opening statement Issues discussed separately; stories told
For example, arbitration would prob-
Made orally Mediator listens; takes notes ably prove to be the better dispute resolu-
Sometimes also in writing Mediator asks questions; reads behavioral signals
Mediator calms parties; summarizes stories; defuses
tion choice where the dispute involves
Order of proceedings and evidence
Complaining party usually presents evidence first tensions highly technical matters; a long-stand-
Arbitrator may subpoena witnesses Mediator determines whether parties understand stories
Evidence rules relaxed Mediator usually has no subpoena power
ing feud between the disputants; irra-
Arbitrator rules on objections to evidence; 5. Problem clarification
tional and high-strung personalities; and
may reject evidence no necessity of a continued relationship
Mediator:
Closing arguments
Culls out core issues in caucus
Oral arguments normally permitted for clarification Asks direct, probing questions
after resolution of the conflict.
and synthesis On the other hand, mediation may
Summarizes areas of agreement and disagreement
Post-hearing briefs sometimes permitted Assists parties in grouping and prioritizing issues
and demands
prove to be the most effective choice
Helps parties focus on interests, not positions where disputants are stubborn but basi-
5. Decislonmaidng 6. Generation and evaluation of alternatives cally sensible; have much to gain from a
If issues non-complex, arbitrator can issue Mediator:
an immediate decision Creates doubts in parties' minds as to validity of their
continued relationship with one another;
If issues complex, or panel has three members, positions and conflict resolution is time-critical.
extra time may be required Invents options for facilitating agreement
Leads "brainstorming;" discusses workability;
Arbitration and mediation are two
notes probability of success of options separate and distinct processes having a
7.Selection of alternative(s) similar overall goal (terminating a dis-
Mediator:
Compliments parties on progress
pute), while using totally different meth-
Assists parties in eliminating unworkable options ods to obtain dissimilar (decisional vs.
Helps parties to use objective criteria
Helps parties determine which solution will produce
contractual) results. These differences
optimum results are best understood by viewing the pro-
6. Award 8. Agreement cesses side-by-side in Table 1.
Normally in writing, signed by arbitrator(s) Mediator:
Short, definite, certain and final, as to all matters under Summarizes and clarifies agreement terms
The benefits of arbitration and media-
submission Sets follow-up date, if appropriate tion to litigants, in terms of cost and
Occasionally a short opinion accompanies award Congratulates parties on their reasonableness
Award may be judicially enforceable or reviewable Usually does not draft or assist in drafting agreement
time savings, are just beginning to be
Agreement is enforceable as a contract and subject to later recognized by lawyers and business pro-
modification by agreement
fessionals alike. It is hoped that this dis-
cussion of the arbitration and mediation
"chairman," to "enunciator," to disputants and himself, is inevitably processes and their differences will help
"prompter," to "leader," to virtual arbi- more effective in accumulating and lawyers feel more comfortable with these
trator. 57 The mediator who can adopt wielding power which is real, yet often two methods of dispute resolution and
different roles on this continuum, chang- not consciously perceptible by the dis- to use them to their clients' advantage in
ing strategies to fit changing circum- putants themselves.55 their joint pursuit of swift, inexpensive,
stances and requirements of both the Since, in the ordinary case, the result of simple justice. 0
57. Gulliver, supra n. 8, at 220. the mediation process is an agreement or
58. Id. at 226. contract not reduced to a court judg- JOHN W COOLEY is a former United States
59. Where a settlement agreement is reduced to a magistrate. He is presently in private practice
judgment, for example, through intervention and ment,59 the result is binding on the parties in Evanston, Illinois and serves as amediator,
assistance of a special master, the "consent judg-
ment" is generally enforceable, if necessary, before
only to the extent that the law of contracts arbitrator and consultant in alternative dis-
the court in which the consent judgment is entered. in the particular jurisdiction requires. pute resolution.