An arbitration/mediation model involves an arbitrator (or a panel of arbitrators) who takes the place of a judge.
This means that, unlike a mediator, an arbitrator has decision making authority.
As the name implies, the arbitration/mediation model is a two-step process:
1. The arbitrator hears evidence, testimony, and review documents presented by the parties. The arbitrator then makes a decision, puts it into an envelope, and then seals the envelope. The decision is not disclosed to either party.
2. At this point the arbitrator “changes hats” and takes on the role of mediator. The normal mediation process ensues, but the parties know that at the end, they will walk away with a decision.
The certainty of a decision is one advantage of this model over simple mediation. People can spend time and money going through mediation, failing to come to an agreement, and then have to abandon the effort and proceed to court because the mediator’s role does not include making a decision.
In arbitration/mediation model, the parties may have reached their own agreement at the end of the second step. If this is the case, the mediator tears up the sealed decision (and the decision remains undisclosed). If, on the other hand, the parties are unable to come to an agreement, the sealed decision is opened and becomes binding.
The knowledge that a decision has been made creates another advantage for this model. This will often motivate people to “un-stick” themselves from positions that are leading to a stalemate and help them strike an agreement on their own. The motivation is rooted in the concern that the sealed decision may not be in a direction of their liking. They would rather reach an acceptable accommodation than take a chance on an undesirable decision.
In short, the arbitration/mediation model ensures that a resolution will be reached, either by the parties themselves or by decision of the arbitrator.
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