Raphael Lapin is a Harvard-trained negotiation, mediation, and communication specialist. Anything negotiation-related falls under his purview—including government entities, corporate entities, and individuals. In episode #248 of the Negotiations Ninja podcast, he shares the difference between mediation and arbitration and where each falls on his dispute resolution continuum.
The role of negotiation and mediation in Raphael’s continuum
In Raphael’s dispute resolution continuum, you start with direct negotiation on the leftmost side. It begins with exploring each side’s concerns and needs with the hope of coming to a resolution and avoiding a contentious court battle. If the negotiation fails, you move to mediation.
The mediator is an expert on the process of negotiation and effective communication. Raphael notes that a good mediator “Facilitates communication and negotiation between the parties in a way that it remains productive and purposeful and helps the parties to reach resolution.” He notes that the mediator has no decision-making power. He is simply a process facilitator.
If parties do not reach an agreement, there is no agreement. But at this point in the process, 85–95% of cases settle. Only about 5% of cases reach trial. Why spend hundreds of thousands of dollars on litigation when you can bring the whole thing forward and settle before it gets to that stage?
Mediation is becoming a popular form of resolution, especially due to COVID. Courts are backed up and it is the fastest way to come to a quick conclusion over a dispute. And often, judges will recommend or even order mediation before the process moves forward.
What is evaluative mediation?
As you move along the continuum, you get to evaluative mediation. Raphael points out that most of the people who practice evaluative mediation have been litigators for years. Some of them are retired judges. The mediators in this case will put subtle pressure on both parties using the law as leverage. They can share what they’ve done—and the outcomes they’ve seen—in those exact cases if they were to go to court. They are trying to strongarm the parties into an agreement based on their litigation experience.
Arbitration is distinctly different from mediation
How is arbitration different from mediation? Mediation is a facilitative process based on negotiation where arbitration is an adjudicative process where the arbitrator is a judge for hire. The arbitrator is usually an expert on the subject matter of the case. This person will hear each side, allow them to present evidence or witnesses, etc. They can design how they want the process to be.
At the end of the day, the arbitrator makes a binding decision about the outcome of the case. Both parties must sign an agreement before the process agreeing to follow through with the verdict. It’s less formal than court proceedings and the process is often quicker.
Arbitration is also almost impossible to appeal. There are only two cases in which you can appeal the decision. First is when it’s clear that the arbitrator made a gross error in terms of the law. Secondly, they are accused of making an unconscionable decision. Both scenarios are difficult to prove.
Litigation: the extreme end of the process
On the far end of the continuum, you’ll land on litigation. As you move from the left to the right, each situation becomes more invasive, adversarial, and costly. It also takes much more of your time. If you go straight to litigation it is difficult to de-escalate. But if you start on the left-hand side of the equation, you can always escalate when necessary.
So many people default to litigation as the way to resolve a dispute. I was chatting with an organization that defaulted straight to litigation, which I advised them against. I knew it would lead to a significant cost that may not be worth their time or money. You can forecast the outcome the best you can but you never know what the outcome will be.
It’s important to make the decision carefully and remove emotions when deciding which process would be best to resolve the situation.
How to prevent diving straight into litigation
Does Raphael have a “Hail Mary” that he’ll use to try and help people avoid litigation? Raphael believes some disputes aren’t ready for resolution. They may have to go through litigation before they’re ready for resolution.
But if someone wants to move to litigation, he’ll ask them why they want to litigate. What is the purpose? What would be a cheaper and more effective means of resolution? You walk them down the path of trying to understand their interests. He will try to find solutions for their interests instead of responding to their position. But you must also be willing to walk away if they’re not interested in other solutions.
How does Raphael facilitate mediation and dispute resolution? What does his process to reach a successful resolution look like? Learn more in episode #248 of the Negotiations Ninja podcast!