When I started my career as a mediator, it seemed natural to become an arbitrator too. Indeed, many if not most neutrals serve as both mediators and arbitrators. But why? The two processes are polar opposites, and require completely different skill sets: At least as generally practiced in the United States, their common bond is only that both are antidotes to traditional litigation. However, many scholars and commentators increasingly see benefits in a blurring of the two, resulting in “med-arb” or “arb-med,” as is more widespread in other countries.
The hallmark of mediation is that the parties themselves, rather than a decision-maker, determine the resolution of their dispute. The mediator’s role is generally to assist the parties in their negotiation with each other by focusing on whether the proposed resolution addresses their core concerns and is preferable to proceeding with the litigation alternative, i.e., their “BATNA.”
