Mediation. Arbitration. Conciliation. So many terms for conflict or dispute resolution, but what do they each mean? For most people, it can be challenging to keep track of and understand it all, especially since some terms are used interchangeably (Note: I use conflict and dispute resolution interchangeably here).

To make matters worse, sometimes terms are used interchangeably that don’t actually mean the same thing (e.g. mediation and arbitration, see below), and often pop culture, television, and films give us conflicting, and sometimes even incorrect, information about what each of these processes should look like. So, here is your conflict resolution terminology primer*:

Alternative Dispute Resolution (“ADR”) 

ADR encompasses many different dispute-resolution processes. The common thread is that each process is designed in a manner to help the parties work out their disagreements without going through a court trial. Think of ADR as the big tent you set up for an outdoor party.

In our outdoor party analogy, the following specific types of ADR are akin to individual tables. They all fall under the ADR heading, but each one has its own special personality.

Mediation: 

Mediation is a non-binding, voluntary, confidential, self-determinative process in which an impartial or objective neutral person (or persons) helps the parties find a solution to a problem. Although a mediated agreement is usually binding on the parties after they sign it, the mediation process is not binding. In other words, the parties always retain control over the decision to participate in mediation; for how long to participate in mediation; and, what offers to make, accept, or refuse. There are a number of different kinds of mediation. A few of the most common are:

Facilitative. 

This is the most traditional form of mediation, in which the mediator facilitates communication by and among the parties to help them understand their respective interests so that the parties can come up with a solution that works best for them. In facilitative mediation, the mediator doesn’t make judgments and keeps his or her own thoughts about the merits of the arguments or the proposed solution to herself.

Evaluative. 

Whereas facilitative mediation is focused on underlying interests, evaluative mediation is more concerned with the merit of the respective arguments and fairness. An evaluative mediator may inject her thoughts about possible outcomes into the process.

Online Mediation. This is mediation via video, text, email, or some other virtual platform (i.e. Slack, Google Hangout). The platform is different but underlying mediation processes are the same and may be facilitative, evaluative, or some other form.

Arbitration. 

Arbitration is a binding ADR process, in which the parties select a neutral, or a panel of neutrals, to hear the evidence in a case and make a decision. It is conducted much like a trial, albeit more informally and typically without strict adherence to the rules of evidence. Arbitration is a binding process because once the arbitrator issues a decision it is extremely difficult to overturn it. The Federal Arbitration Act, the Massachusetts Uniform Arbitration Act, and the New Hampshire Arbitration Act provide very limited reasons for vacating an arbitration award.

Med-Arb / Arb-Med. 

These are two hybrid models that combine mediation and arbitration. In Med-Arb, the parties begin with a mediation. If they resolve the case through mediation the process ends. If they do not successfully resolve the matter, however, they move into an arbitration phase in which either the mediator takes the role of an arbitrator or a new neutral comes in to act as the arbitrator. The arbitration decision is binding. In Arb-Med, the parties argue the case to the arbitrator as they would in a standard arbitration. The arbitrator makes her decision, writes it, and seals it. Then, she attempts to mediate the case for the parties. If the parties reach a mediated agreement, the parties don’t see the arbitration agreement. If the parties do not reach a mediated agreement, the arbitrator presents the previously sealed decision and it becomes final and binding on the parties.

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This is not an exhaustive list; there are many other types and iterations of dispute resolution. If you have a dispute that you would like to put behind you, we can work with you and all parties involved to find the most appropriate dispute resolution process for your particular situation.