This is taken from an email I wrote to the imc-us-process list, outlining the differences between mediation and arbitration. Mediation is a better option in most IMC conflicts, and it certainly is more congruent with the IMC's value on non-hierarchical, consensus-based decision making. But there are times when a conflict may not be able to be resolved through mediation, and its helpful if collections have other models to consider as alternatives to just letting a conflict continue without intervention.
I'll start with mediation. Mediation is, in a sense, assisted negotiation. An outside, neutral person helps people in conflict try and resolve their dispute by helping them negotiate in a constructive way.
That usually involves setting up ground rules for the discussion and laying out a process to...
1. help people hear one another's perspectives and needs 2. jointly agree on the issues that need to be worked on for the conflict to be resolved 3. creatively explore options for working with each issue 4. draft a resolution/agreement
There are many small but important ways mediators might 'nudge' parties toward agreement. For example...
- Help parties consider the costs of not resolving the conflict.
- Speak up when it seems like an important issue isn't getting mentioned (spot the pink elephant).
- Keep the parties "on track" with the process (e.g. "It sounds like you're jumping to suggest solutions, but right now I was hoping we could first make sure that we've identified and agreed on all the issues that need to get resolved.")
- Pitching in with creative resolution ideas (though this is usually avoided as much as possible--far better to just nudge the parties themselves to be creative about resolution ideas/brainstorming).
- While the important thing is that those in conflict empathize with one another, the mediator empathizing (and modeling that in the process) itself can help with the frustration of not feeling heard
- Mediators offer hope, encouragement, and help keep the successes and accomplishment also in mind, since otherwise conflict has a way of drowning those out.
What the mediator absolutely does not and can not do is impose any decision or agreement on those in the conflict. The process is voluntary, any agreement is by consensus between the parties involved.
Ok, arbitration is a bit easier to explain, because unlike mediation, pretty much everyone is actually familiar with it: It's going to court.
A judge is an arbitrator--an outside, neutral person who follows a process to learn about the conflict and decide on a fair and just outcome.
Court cases are a form of "binding arbitration"--the people in conflict must accept the agreement that is made (or else there are negative imposed consequences). There is also such a thing as nonbinding arbitration, where a judgment is made but there is no punishment if those in the conflict choose to not follow it. (Nonbinding arbitration isn't very common for a variety of pretty obvious reasons, but the International Court of Justice in The Hague is one example of it.)
While going to court is a form of arbitration, arbitration is often an alternative to going to court. Instead of going into the legal system with all the costs and delays that involves, an outside, neutral person is brought in to learn about the conflict and pass down a judgment. The process may vary by arbitrator and particular conflict, but it's almost always faster, more informal, and more accessible to non-attorneys than the courts. The parties may formally agreed that they will follow whatever decision is reached by the arbitrator, so it is binding insofar that not following it would be a breech of contract.
[Rant: arbitration is a fine alternative in some cases, but lately it's getting written into more and more contracts. Buy a new car for example, and you'll find that the contract you sign in buying it stipulates that you use arbitration if there's a dispute. It's getting put into all sorts of contracts these days, with the arbitration associations heavily marketing it as a way for companies to lower their potential legal costs. While arbitration might be great as a choice for people in conflict to have, it's very troublesome when people every day are unwittingly signing away their right to file a case in court and -having- to use private arbitration when a dispute arises. I think courts ought rule such mandatory arbitration clauses as contracts of adhesion and invalid, but generally the courts have upheld them.]
Ok. Now all of that was describing formal, 'professional' mediation and arbitration. They happen in informal ways all the time.
"Dude, this new banner graphic blows chunks."
"No way, you're crazy. It looks rad."
"Dude, I'm telling you, we're not replacing the banner's indymedia logo with a picture of Mumia surrounded by parentheses. And what's up with the white text on black background for feature stories?"
"It looks more edgy that way. I like it."
Christine steps in: "Umm, folks, I'm trying to get work done here, and it's hard to do when you're fighting. I don't want to make any design decisions, but maybe I can help you work together to find something you both can agree to."
"This new banner for out site is a think of wonder."
"Only if you're blind."
"Ok, let's have Christine decide. We'll go with whatever she says. Ok?"
Christine steps in: "Ok, then this is my decision..."
Did that help clarify the difference between mediation and arbitration?
p.s. While arbitration and mediation are very different, they actually can compliment each other. Mediation is helped by the fact that disputes not resolved there can go to arbitration ("if you don't resolve this together, then it can go to a judge, and you might not be very happy with that decision.") And systems of arbitration are helped by the fact that mediation helps keep them from becoming over-burdened by disputes that people could work out far better on their own.
- 05 Mar 2004