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American Bar Association - Defending Liberty, Pursuing Justice


Vol. 15, No. 4

Arbitration & Mediation



"Pepsi or Coke?"

“Pepsi or Coke?” you’re asked. You state your order, and they bring the wrong thing. Some would say, what’s the difference? Why does it matter? They are both colas! Don’t be so finicky!

When you are talking about mediation and other forms of alternative dispute resolution, it matters, or it doesn’t matter—that depends on several factors, the most important of which are:
(1) Do you know the difference?
(2) Does the difference matter in your case?

As lawyers looking out for our clients’ best interests, it’s not necessarily “finicky” to recognize and “care” that you get the right product.

I’ve had it happen—“ordered” a settlement conference, and got a mediation (that then failed); and “ordered” a mediation, and got a settlement conference (that substantially succeeded anyway but because I came up with more creative options than did the “mediator,” I think). I think my clients were harmed in both cases. They paid a lot (my fees and their own time and energy) and didn’t get the end result they might have gotten had the correct product been served. In both cases, attorneys were the hired facilitators and to this day I don’t know if even they knew the difference.

What are the differences?
To some degree, none, if what you want is a trusted third party to facilitate the parties’ reaching agreement about something in dispute. There are usually several ways to accomplish this goal. Most lawyers are aware of formal mediation and settlement conferences as a means to finding a mutual agreement, but negotiation—the key to resolving disputes—happens in and out of the court system; with and without lawyers’ involvement; possibly with family members, clergy, or friends and not necessarily with individuals formally identified as dispute resolution professionals. If the selected path gets you where you want to go, the differences may not matter. But there are differences and sometimes they can matter.

When do the differences matter?
Think about your client and the other parties in the case—are there ongoing relationships such that it might be important for the parties coming through the process to have developed new skills and appreciation for the benefits of mutually agreed upon solutions? This might well be the case for parents who are in a child custody-related divorce mediation—these parties are going to coparent for many years to come. Studies have long shown that children of divorce are generally more damaged by the destructive behavior of their parents than by the fact of divorce. For these clients, the process of mediation may be preferable to that of a settlement conference.
Here’s another scenario—are there power imbalances and less than good faith on the part of one or more of the parties? These parties may need the more common “strong-arming” performed by a settlement referee to help block abuses and get to enforceable agreements.

With the wrong “product,” there are not only the direct financial costs and misplaced investments of the client’s time and energy. The wrong process, if it fails to facilitate agreement, may unnecessarily embitter the participants and make them cynical (instead of realistic) about dispute resolution processes in future.

Misunderstandings about the “products” in the arena of alternative dispute resolution are common and understandable. There’s little standardization even in definitions, and ignorance of the differences and orthodoxy about the differences predominate. For more on this, go to, and read Peter Adler’s article, The End of Mediation: An Unhurried Ramble on Why the Field Will Fail and Mediators Will Thrive Over the Next Two Decades!

Gini Nelson is a sole practitioner in Santa Fe, New Mexico. Her practice emphasizes private dispute resolution and domestic, bankruptcy, and bankruptcy avoidance law. She publishes the New Mexico Bankruptcy Law blog; and is a contributing author to the Bankruptcy Law Network, an ABA Top 100 law blog. Contact her at, or (505) 629-0768.

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