Are mediation and arbitration the same?

No, they are very different.

Both mediation and arbitration are examples of alternative dispute resolution, or ADR, meaning both are alternatives to resolving a case through the court system.  But they are two very different alternatives to the courts.

A useful way to describe mediation is as “assisted negotiation”.  A neutral person will help the disputing parties voluntarily resolve their dispute through discussions.  Mediators use different techniques to help parties reach a compromise.  If the mediation is successful, the parties won’t sue each other and will agree to end their dispute.  Typically one party will agree to compensate the other party.

A useful way to describe arbitration is “private justice”.  In an arbitration one or more arbitrators will act as a judge and jury to decide the outcome of a dispute.  Instead of suing in court, the parties will bring their claims against each other in a private proceeding.  Arbitrations are usually confidential, as opposed to court proceedings, which are usually entirely public.  Unlike a mediation, the parties are not trying to resolve their argument through negotiations, they are trying to win by proving or disproving liability.

Many contracts include provisions that require the parties to arbitrate.   These provisions are known as “arbitration clauses.”  The arbitration clause will state that in the event of a dispute, the parties agree to not sue in court but instead to initiate an arbitration.  I uploaded a few videos, more soon on ADR.