An arbitrator is essentially a trial judge that parties independently choose to decide their case through a “private” trial. Most arbitrators conduct what essentially amounts to a trial, with documentary exhibits and witnesses, all subject to the rules of evidence. The arbitrator’s binding decision effectively substitutes for a trial court’s ruling and is not generally subject to appeal, except in limited circumstances. Because an arbitrator’s role is so similar to that of a judge, the arbitrator is limited from participating directly in settlement discussions in much the same way as a trial court judge. Indeed, settlement negotiations are generally confidential and occur outside of the judge/arbitrator’s presence.
Like an arbitrator, a conciliator provides feedback (and even a written memorandum, if requested) evaluating the strengths and weaknesses of each party’s case. The conciliator may also hear “argument” from each attorney that sounds quite a lot like a court hearing or arbitration session.
Unlike in arbitration, however, the conciliator’s opinions are not binding on the parties. Unlike most arbitrators, a conciliator participates directly in settlement negotiations, in which the conciliator often plays a role similar to an evaluative mediator. In short, an arbitrator’s main focus is hearing arguments and evidence and making a binding decision. A conciliator’s main focus is on listening to each party’s position and assisting the parties in reaching a settlement.
(It should be noted that many retired judges can be hired as either arbitrators or conciliators. Retired judges are often uniquely qualified to serve as arbitrators because the role of judge and private arbitrator are so similar. However, where conciliation is more similar to mediation than arbitration in many ways, it sometimes makes sense for parties to seek qualified mediators to serve as their conciliator rather than a retired judge.)
Category:
Conciliation