While arbitration and mediation are both commonly used forms of informal dispute resolution, they are quite different. A mediator's role is to help the parties to communicate and negotiate with each other, but an arbitrators role is to listen to the evidence and arguments presented by each party and then decide the dispute. There are two forms of arbitration: binding and non-binding. In binding arbitration, the arbitrator's decision is final and the parties have little ability to change the outcome. In the case of non-binding arbitration, the parties have the option to accept or reject the arbitrators non-binding decision.
Generally, there are major differences between the two which are described below.
Mediation is “a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties…” [Florida Statute 44.1011(2)]
Arbitration is "a process whereby a neutral third person or panel, called an arbitrator or arbitration panel, considers the facts and arguments presented by the parties and renders a decision which may be binding
or nonbinding..." [Florida Statute 44.1011(1)]
2. Self Determination
Mediation: In mediation, the parties are the ultimate decision makers and the mediator is prohibited from making decisions for the parties. There is no agreement unless all parties voluntary choose to agree and generally the parties document their consent by signing an agreement summarize the terms of their agreement. The parties can be as creative as they wish and can agree to solutions that a judge may not have authority to order. [Rule for Certified and Court Appointed Mediators 10.310]
Arbitration: In binding arbitration, the parties have no self-determination. They are bound to accept the arbitrators decision unless there is a basis to challenge the arbitrator's decision in court. Generally there are only a very limited number of circumstances where a binding arbitration decision may be overturned. [44.104(10)]
In non-binding arbitration, the parties have limited self-determination in that they can choose to accept or reject the non-binding decision. In this type of arbitration, no decision is binding unless all parties accept the decision. However, there can be financial risks associated with rejecting a non-binding decision, and under certain circumstances, a party can later be ordered to pay the other parties reasonable legal expenses, arbitration fees, expert fees and other costs. [44.103(6)]
Mediation: Parties who are court referred to mediation or who use a Florida Supreme Court certified mediator are assured that their mediation communications cannot be disclosed to the judge or anyone who didn’t participate in the mediation other than a party’s attorney, unless the communication falls under an exception to Florida Mediation Confidentiality and Privilege Act. Other professionals involved in the process do not have a privilege to prevent the parties from disclosing to the court what the professional communicated verbally or in writing if both parties agree to do so. [Florida Statutes 44.401 – 44.406]
Arbitration: Generally, arbitration communications by the parties and other arbitration participants do not have any statutory confidentiality or privilege protections and therefore what is said in arbitration is not considered confidential unless the parties choose to sign a confidentiality agreement.
4. Role of Lawyers
Mediation: While hiring an attorney to help negotiate and/or review legal documents can be invaluable, parties are free to engage in mediation without being required to hire an attorney. If they do hire attorneys, their attorneys may participate in mediation along with the party. Parties may also elect to attend mediation without their attorneys, but later review potential agreements with their attorneys prior signing a mediated settlement agreement.
Arbitration: Because arbitration is very similar to a trial where a decision maker hears evidence and make decisions, parties are well advised to have attorneys represent them in arbitration although they are not required to do so. In some cases more than one arbitrator may be utilized, and in that case, the decision would then made by an arbitration panel.
5. Use in Divorce and Other Family Law Matters:
Mediation: The Florida Legislature provides that courts can refer cases to mediation that involve "family matters, including married and unmarried persons,before and after judgments involving dissolution of marriage; property division; shared or sole parental responsibility; or child support, custody, and visitation involving emotional or financial considerations not usually present in other circuit civil cases." In addition, parties may voluntarily choose mediation at any time. [44.1011(d)]
Arbitration: The Florida Legislature does not authorize binding arbitration of any dispute involving child custody, visitation, or child support. Appellate cases (such as Toiberman vs. Tisera, 2008) have also indicated that binding arbitration of alimony is not allowed (and therefore not enforceable) if the divorce also involves minor children because alimony payments affect the calculation of child support. [44.104(14)]
There is no similar prohibition on the parties using non-binding arbitration as the parties are still able to accept or reject the non-binding decision.
6. Training Standards and Certification
Mediation: Florida Supreme Court certified Family Mediators must have successfully complete forty hours of family mediation certification training in a Florida Supreme Court approved mediation certification training program, have a Master’s Degree or higher* (such as a JD, PhD, MD, Ed.D., etc.), observe or co-mediate a prescribed number of family mediation cases with a Florida Supreme Court certified Family Mediator, and have good moral character. [Florida Rules for Certified and Court-Appointed Mediators 10.100 - 10.130] See How to Become a Certified Mediator for more details.
Arbitrators: Arbitrators are only required to take a four hour Florida Supreme Court approved Arbitration Training. Generally arbitrators are members of The Florida Bar, except where otherwise agreed by the parties. [Florida Rules for Court-Appointed Arbitrators 11.010]
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