M ediation and arbitration have become increasingly popular methods of alternative dispute resolution. Parties to a dispute typically resort to mediation when they are unwilling or unable to resolve the matter on their own. The end result of the mediation process is not binding, and the parties can continue their dispute if they are unhappy with the result or still just do not want to settle. Arbitration, on the other hand, is a binding resolution process similar to a trial, but with fewer technical rules than a traditional courtroom trial. The parties pick one to three private arbitrators to judge the matter, or an arbitration organization selects them and the parties retain veto rights over some potential arbitrators.
Many lawyers are more comfortable with arbitration than with mediation as a trial substitute.
The greater acceptance of arbitration may be based on its perceived similarities with courtroom procedure. Some attorneys reason that they can better judge the likely outcome of a more familiar process. And some have the feeling that there is just less control over the mediation process. But more important than either of these perceptions is the reality of the mediator's or arbitrator's philosophy. The philosophy of the mediator or arbitrator can be outcome-determinative.