In mediation, the arbitrator sits down with the parties, usually in person in one session, to help them identify the issues, explore all the options for settlement and craft a settlement agreement. That is really their agreement, that they are voluntarily going to sign and that becomes enforceable. In arbitration, the arbitrator is sitting more or less in the judge’s role and listening to parties and their counsel present the facts, any arguments that they might have and any witnesses that they might bring forward. And then the role of the arbitrator is to decide the questions of law or fact that are given to them to decide.
According to Findlaw, a typical mediation is done in person with the parties in the council. At that session, the arbitrator often separates the parties for confidential discussions to explore some options that they might not want to explore with the other party present. Sometimes, this is done by phone, but that is not a typical case with a mediation. The arbitrator’s interest in an arbitration is that there are never any breakouts. They always conduct sessions with everyone present.
According to the Harvard Law School, the arbitrator doesn’t speak to parties separately at all, and also it’s rather rare to have a telephone arbitration. The only thing the arbitrator does in the arbitration hearing process by telephone is usually the preliminary hearing where he or she does some scheduling. The arbitrator takes care of some preliminary motions in that type of thing. His or her goal is to help the parties and their counsel develop the best alternative dispute resolution method for them to resolve their dispute.
