ControlAltDispute's Blog

Mediation Versus Arbitration

Posted on: August 16, 2009

Instead of bieng philosophical or controversial today, we’re going fundamental.  I want to address briefly an area where I get a lot of questions from clients and friends.  Since this is a mixed (some would say mixed up) blog, I want to divide this discussion into “civil” and “Scriptural” parts.

Civil Mediation and Arbitration.  It is very common to be confused about the terms “mediation” and “arbitration” as they are used in a civil or litigation context.  The terms are regularly misunderstood and misused – and despite what you may have thought, they are not interchangeable. 

A mediation, as the term is used today, is a very different thing than an arbitration.  A mediation is most often illustrated by two parties who present their different positions to a neutral third party who, working with them both (often in separate rooms), tries to facilitate a settlement between the parties.  In a mediation, it is always the parties themselves who are in control of the outcome and the mediator’s role is to try to help them devise their own solution. 

In an arbitration, on the other hand, the same two parties present their positions to a neutral third party (in the same room) and then the parties hand over control to the arbitrator who judges between them and enters a “ruling” which may be entirely different than what either one of them wanted (or would have settled for).

A quick way to remember the difference between the two is to associate the terms with trigger words. 

I say “mediator,” you say “facilitator.”  (he facilitates the parties reaching a settlement)

I say “arbitrator,” and you say “judge.”  (he judges between the parties with a ruling)

For a fuller explanation, and side-by-side comparison table, please check out this section from the FAQ page at www.ControlAltDispute.comhttp://controlaltdispute.com/faqs.html#differencebetweenMedArb

This distinction should take you a long way down the road in understanding the terms as they are used in civil litigation.

Scriptural Mediation and Arbitration.  The terms themselves are both found in the Scriptures, but one must be careful not to take the 21stcentury American legal usage/definition and apply it rigidly to these ancient writings or contexts.  In the Scriptures, the term “mediator” is primarily used to describe someone who stands between two parties so as to reconcile them to each other (grk:  mesitēs, from mesos meaning “middle”).  In this sense, it is consistent with the role of “mediator” as we use it in the American court system.  The “manner” or “procedure” however, is entirely different from what is found in the Bible.  (Hint:  Do not expect your court-appointed mediator to act as a ransom for either side!)  Also, the same Greek root translated as “mediator” is sometimes, in some translations, rendered “arbitrator” so, again, a direct and rigid application of the modern legal terms to the older writings would only serve to confuse.

If you wanted to study the Scriptural usages of the terms more closely, you might want to start with these verses concerning mediators and arbitrators:*

Gal.  3:19-20:  “Why the Law then? It was added because of transgressions, having been ordained through angels by the agency of a mediator, until the seed would come to whom the promise had been made.  Now a mediator is not for one party only; whereas God is only one.

1 Tim. 2:5-6:  “For there is one God, and one mediator also between God and men, the man Christ Jesus, who gave Himself as a ransom for all, the testimony given at the proper time.

Job 33:23-24:  “If there is an angel as mediator for him, One out of a thousand, To remind a man what is right for him, Then let him be gracious to him, and say, ‘Deliver him from going down to the pit, I have found a ransom’;”

Heb. 8:6; 9:15; 12:24:  “But now He has obtained a more excellent ministry, by as much as He is also the mediator of a better covenant, which has been enacted on better promises . . . .  For this reason He is the mediator of a new covenant, so that, since a death has taken place for the redemption of the transgressions that were committed under the first covenant, those who have been called may receive the promise of the eternal inheritance . . . .  Jesus, the mediator of a new covenant, and to the sprinkled blood, which speaks better than the blood of Abel.

1 Sam. 2:25:  “If one man sins against another, God will mediate for him; but if a man sins against the Lord, who can intercede for him?”

Ezekiel 16:52:  “Also bear your disgrace in that you have [mediated for] made judgment favorable for your sisters. Because of your sins in which you acted more abominably than they, they are more in the right than you. Yes, be also ashamed and bear your disgrace, in that you made your sisters appear righteous.”

Ex. 21:22:  “If men struggle with each other and strike a woman with child so that she gives birth prematurely, yet there is no  injury, he shall surely be fined as the woman’s husband may demand of him, and he shall pay [lit. by arbitration] as the judges decide.

Lk 12:13-14:  “Someone in the crowd said to Him, “Teacher, tell my brother to divide the family inheritance with me.”  But He said to him, “Man, who appointed Me a judge or arbitrator over you?”

If you wanted to start a Sunday school discussion, you might ask:  In what ways is Christ’s role as mediator the same as, or different from, a court-appointed mediator?  (Speaking just for myself, I have yet to mediate a dispute between a perfectly holy party and a party dead in sin and trespasses . . . .)

For homework, read Chapter VIII of the Westminster Confession of Faith (“Of Christ the Mediator”) which begins with:  “It pleased God, in His eternal purpose, to choose and ordain the Lord Jesus, His only begotten Son, to be the Mediator between God and man, the Prophet, Priest, and King the Head and Saviour of His Church, the Heir of all things, and Judge of the world: unto whom He did from all eternity give a people, to be His seed, and to be by Him in time redeemed, called, justified, sanctified, and glorified.” (citations omitted)

So now you know.

Blessings,

— M. Glenn Curran, III, Esq.

*(All Scripture quotations are from the New American Standard Bible: 1995 update. LaHabra, CA: The Lockman Foundation.)

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2 Responses to "Mediation Versus Arbitration"

Mr. Curran:

Your site was an encouragement to me, as I have been offering biblical mediation and arbitration for the past seven years. My efforts have been to persuade churches, other non-profits (e.g., booster clubs) and businesses to incorporate med/arb clauses into bylaws and transactional documents. However, the typical reply is that “we’ve never done that” or “we don’t have disputes”, etc. Then, I will get a call after a lawsuit is filed or a dispute erupts, asking if the claimant can be forced to mediation or arbitration. Sound familiar?

On the other hand, I have acted as neutral in a number of church disputes and can attest to the power of the Holy Spirit in reconciling parties. Anyway, keep up the good fight. If I can be of service or counsel to you, please let me know.

Michael Wetzel
Michael L. Wetzel, SDG, P.C.
Bogart, GA

Michael, it sounds very familiar indeed! The “it only happens to other people” mindset is the norm in my experience too.

I spent an inordinate amount of time researching Christian mediation, Christian arbitration, and Christian alternative dispute resolution before I formed ControlAltDispute. The alternative dispute concept was universally accepted and applauded, but there were in reality very, very few viable alternatives available to Christians (at least so far as I could tell from the Internet) where they lived. I am very glad to hear you are manning the front in Georgia!

Thanks very much for your comment, and let’s stay in touch.

–Glenn

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