by Dena Reiner

“What did you say you do?”

More often than not, when someone asks me what I do, and I tell them I’m a mediator, they say, “Oh, you arbitrate.” I tell them again that I mediate, and they reply, “Isn’t it the same thing?”

So I thought I’d briefly explain the differences between arbitration, negotiation and mediation, all of which are less expensive options than taking your conflict through the court system. Some people refer to arbitration and negotiation as win/lose situations, whereas mediation is considered a win/win situation.

Arbitration. An arbitrator makes a decision or a determination (depending on the type of arbitration you choose) based on everything said during the arbitration and any documents presented as evidence. The parties have no input as to what the decision or determination will be.

Binding arbitration is when an  arbitrator makes the final decision, which cannot be appealed except under extraordinary circumstances. If you opt for binding arbitration, you’ll be giving up your right to a jury trial.

Non-binding arbitration is when an arbitrator makes a determination, rather than a decision. The determination isn’t binding on either party, and the parties have the right to take their conflict to court or ask for binding  arbitration.

Negotiation. The parties either negotiate among themselves, or elect to have a negotiator help them. Negotiation involves influence, power, persuasion, compromise — and  sometimes dishonesty.

Most negotiation is based on the parties’ positions. Therefore, the parties might think twice before making any type of concession, fearing their positions might be jeopardized or compromised. It’s all about bargaining. Isn’t that why people usually ask for top dollar when selling something?

There’s also interest-based negotiation which can be a win/win situation. Like mediation, it’s based on the interests and concerns of the parties, not what their positions are. In other words, you’re not starting by demanding what can sometimes be unrealistic things from one another.

Mediation. This is my favorite, partly because it has changed my life, and I believe it’s the most rewarding option of the three.

Mediation is voluntary. It wouldn’t work very well if one party wanted to be there, and the other didn’t. The mediation guidelines can be set by the parties, the mediator, or both.

My role, in the type of mediation I do, is to facilitate respectful communication between the parties so they can come to their own resolutions, which usually benefit all parties. This type of mediation has an extremely high success rate.

I try my very best not to offer opinions, suggestions or solutions because  I know if the parties can come up with their own solutions, they are more likely to keep to their agreements. What would work for me might not work for someone else. It’s more important for me to ask questions that help the parties discover what their real issues are, so they can then figure out what they need from each other to resolve their conflict. You shouldn’t even begin to talk about what you need to resolve your conflict until the real issues are known.

So, if you have a conflict, before starting out on what can become a very expensive, time-consuming path by going to court, think about trying mediation before anything else.

I welcome your thoughts and  questions.

Dena Reiner is a mediator who resides in Half Moon Bay. She has over nine years’ experience mediating disputes and is a member of the Association for Dispute Resolution of Northern California. She can be reached at 650-712-9821 or by e-mail at msmediator@comcast.net.