Many corporate executives and in-house counsel believe they would be giving up rights, including their rights to a jury trial and appeals, by engaging in mediation. This is incorrect and demonstrates a misunderstanding of the distinction between mediation and arbitration. Arbitration is similar to but more expeditious than litigation in that discovery generally is conducted, and one or more neutral individuals preside over a hearing and ultimately render a binding, non-appealable decision resolving the parties’ disputes. This article does not address arbitration.
Mediation is a party-driven, confidential process through which an impartial person or “neutral” selected by the parties facilitates communication and acts as a catalyst between the parties. Mediators do not render decisions but rather work to draw parties together by eliminating obstacles to communication and guiding the process away from confrontation and towards reconciliation.