What is arbitration? What is mediation? Clarification following President Trump’s “discussion” with President Zelensky

One of the many comments I noted during Trump's discussions in the White House with Zelensky was the following: -

“I'm here as an arbitrator as a mediator to a certain extent between two parties that have been very hostile, to put it mildly…”

What is an arbitrator?

An arbitrator is a person whose job is to reach a binding decision in a dispute between two or more parties who are unable to resolve the differences between them on their own. The arbitrator will be an independent neutral person, with no conflict of interest or perception of one, who acts even handedly and in a non-partisan way, and whom the parties agree should (after reviewing the evidence put before him/her), make a binding decision. Arbitration is a private process the aim of which is to bring the matters in dispute to an end.

You do not need to be a lawyer to be a good arbitrator. It helps to have good analytical skills and sound judgement.

Arbitration differs in a critical way from mediation in that an arbitrator is empowered to make a final binding decision whereas, in mediation, the parties themselves make the decisions, encouraged and facilitated by the mediator.

What is mediation?

A mediator is an independent neutral, free from any conflict of interest which might or might be seen to impair his or her independence, whose job is to help the parties to reach a mutually acceptable solution to the matters in dispute.

Rather than having a decision imposed upon them by an arbitrator (or judge in court proceedings) the parties themselves, assisted by the mediator, fashion a solution which suits their needs. It is sometimes said that in arbitration one side wins and the other loses, whereas in mediation both sides can end up with some benefit which they themselves have agreed.

Mediation like arbitration is a confidential process which enables the parties to talk and negotiate with each other directly or through the mediator and with the mediators help with a view to reaching an acceptable conclusion. It is a private process {not conducted before the world’s press], and off the record. It is flexible and voluntary and can lead to a binding agreement if the terms are acceptable to the parties.

The mediator has no power to impose his/her solution.

Key to success in mediation is the establishment of trust and confidence in the mediator whose skills will be directed towards helping the parties to find compromise often through joint and private meetings, helping them to focus upon their objectives and needs, and to weigh up the advantages and disadvantages of settlement and the options available.

Mediation seeks to focus not so much on what the parties want (best case) but what they need (can live with). “Wants” are likely to lead to stalemate and entrenchment, whereas “needs” focus on compromise and solutions.

Good mediators are good listeners.

I will leave the reader to determine whether President Trump fits the role of arbitrator or mediator outlined above.

The other comment from Trump which struck me in the White House discussions was:-

“All I can do is get everybody to the table.”

This is important. You cannot solve a problem without communicating in some way with the party with whom you are in dispute however difficult this may be. The communication does not have to be direct or face to face.  Mediation can provide a very safe way of communicating in confidence and behind closed doors.

Difficulties are often encountered in getting the parties together in the first place particularly where they are entrenched in their views.

This is where mediators can help since experience shows that once communications are started—provided they involve all the right people –solutions can be found.