What is the difference between arbitration and mediation?

Arbitration is a quasi-judicial process: the parties state their cases to an arbitrator or panel of arbitrators, and the tribunal decides how the controversy will be resolved.

In mediation, the parties control their fates. As a mediator, my job is to facilitate communication. I have considerable freedom to help the parties generate and explore alternative resolutions. As an arbitrator, I may meet only with both (or all, if there are more than two) parties and/or their lawyers present. As a mediator, I am free to meet with each party alone, all parties together, all counsels together without the parties, each party with its counsel, etc. As a mediator, I am permitted to, and will, hold in confidence any information provided to me in confidence by a party unless and until advised by that party that I may disclose the information.

Can a mediator be compelled to testify in litigation if the mediation fails?

As a mediator, I may not be forced to testify in litigation between or among the parties regarding matters discussed in mediation. Both the New York and New Jersey courts recognize the efficacy of mediation to resolve conflicts and protect the process by assuring that whatever information is given to a mediator in confidence is not subject to discovery. This makes it possible to utilize mediation to explore alternative solutions without delaying either filing or proceeding with litigation. Even during litigation, mediation can be instituted and proceed on a parallel track without risk that the mediator will be called to testify in the litigation.

Successful resolution through mediation depends upon cooperation and good faith efforts by all involved. As a mediator, I may, in the course of discussion, offer a variety of alternatives and suggestions, but I have no power to decide. As in any negotiated transaction, the decision to sign or walk away from the table lies with the parties.