The evaluator will identify the main issues and explore possibilities of settlement. In addition, the evaluator will assess the merits of each party's case. If settlement is not achievable, the evaluator may assist the parties by indicating procedural recommendations, the intent of which is to streamline the litigation process. For ADR to be successful, the parties must genuinely wish to achieve a settlement. There are cases in which this will not be the desire of one or more of the parties.
Arbitration involves adjudication by a third-party neutral.
While it is possible to structure arbitration to be non-binding, most arbitrations are designed to be binding. Arbitration will in most instances arise by agreement of the parties, either arising out of a pre-existing agreement or based on the specific terms of an arbitration agreement entered into after the dispute has arisen. Unless otherwise agreed, the terms of the applicable Arbitration Act will govern. The single most important distinction therefore is that the decision of the arbitrator, unless otherwise agreed, will be binding, and the decision may be entered on the court record. The mediator does not make a decision, but rather works with the parties to assist them to find a solution, satisfactory to them, of the dispute between them.