The author, a lawyer with a litigation and arbitration background, is an American Arbitration Association mediator specializing in general commercial, banking and construction disputes. This paper was presented as a commentary at the Eleventh Joint ICSID/ICC!AAA Colloquium on International Arbitration held last October in San Francisco.
I laving spent many years both in private law practice and, later, mediating well in excess of 150 cases, I have come to believe there may be some confusion about the meaning of the terms mediation and conciliation. In the conciliation process, the conciliator is called upon by the parties to make a non-binding recommendation or finding that often concerns the factual or the legal issues in dispute, as well as what the conciliator considers to be the appropriate resolution of the dispute. This finding may or may not be made after a failure by the parties to reach an agreement. The finding or recommendation is made to the parties jointly by the conciliator. For purposes of this article, mediation will be defined as a process wherein the mediator is not mandated by the parties to make a finding or decision nor to recommend, jointly, to the parties. Finally, arbitration involves a binding, fact-find ing resolution by a neutral third party. With these working definitions, it is clear then that the process moves from a negotiation model (in mediation) to a litigation model (in arbitration), with conciliation falling somewhere in the middle.