Mediation, Arbitration, and Litigation

By Maeve Maddox

In general usage, mediate and arbitrate are synonyms. However, as a reader pointed out when I used the words mediator and arbitrated in a sentence illustrating the difference between uninterested and disinterested, the roles of mediator and arbitrator in a legal context are distinct.

Note: Like arbitrator, the noun arbiter also means “one who judges.” Arbiter usually refers to someone who judges matters of taste or etiquette: “Gradually, the arbiters of the New York art world caught on. Superlatives in The New York Times became almost routine.”

The reader, who has served as both mediator and arbitrator, explains the difference this way:

As a mediator, I help to facilitate a resolution of matters in dispute, a resolution…that all parties then agree to. I do not decide the matter, the parties do.
 
As an arbitrator, I act as a judge – although I consider the parties’ respective proposals for resolution, I decide how the matters will be resolved.

Because litigation is time-consuming and extremely expensive, processes called mediation and arbitration have become popular as alternatives or adjuncts to litigation.

litigation: any lawsuit or other resort to the courts to determine a legal question or matter.

mediation: an attempt to settle a legal dispute with the help of a mediator (neutral third party) who works with the disputants to find points of agreement and reach a fair solution.

arbitration: an informal trial presided over by a person or panel of persons (neutral third parties) who are not judges in the judicial system.

Mediation may or may not result in a satisfactory settlement. With arbitration, the disputing parties (usually) agree in advance to accept the decision of the arbitrator/s.

Sources: FindLaw.com and Law.com

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4 Responses to “Mediation, Arbitration, and Litigation”

  • venqax

    Very well explained. One more important thing: There is no arbitrator. One who arbitrates is an arbiter. Indicative of the prevalence of this mismotism* is that my spell-checker didn’t even red-line arbitrator. Must be written by MW.

    *A word I readily admit I made up. But i find it both without synonym and useful.

  • Maeve

    Venqax,
    I love your nonword “mismotism.” If it existed, I’d be sure to write a post about it.
    As for “arbitrator,” apparently it does exist. The first OED citation is dated 1426. The Ngram Viewer shows its presence alongside “arbiter” from 1800-2000. I rather like making a distinction between them.
    https://books.google.com/ngrams/graph?content=arbiter%2C+arbitrator&year_start=1800&year_end=2000&corpus=15&smoothing=3&share=&direct_url=t1%3B%2Carbiter%3B%2Cc0%3B.t1%3B%2Carbitrator%3B%2Cc0

  • Precise Edit

    Said the pirate of his dog: “Arrr, biter!”

  • Precise Edit

    Said the pirate’s dog of the pirate’s wife, “Arrr, bit ‘er!”

    (Sorry, it’s been a long day.)

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