Fri 12 Oct 2012

Is There Such a Thing as "Non-Binding Mediation"?

Posted by Heverton.Oliveira

It has been interesting following some of the commentary recently on the NHL hockey lockout and the discussions about the use of mediation.  

While Gary Bettman appears to have rejected the option of mediation out of hand, not everyone agrees this is the best approach.  Also, the debate has illuminated some confusion about the definitions of both mediation and arbitration.  In some pieces they seem to be used interchangeably.

As an example, here is how HockeyBuzz.com blogger Travis Yost describes the processes in his September 18th post:

Again, there's two forms of mediation: Binding, and non-binding. Binding mediation is a relatively new form of ADR, but it still possesses the same problems that binding arbitration would, locking in two parties to a deal one [or, both] may not like. It's ideal for the fans, but it may or may not be ideal to either the players, the owners, or both. When you strip the powerful of power, things grow more contentious.

Non-binding mediation, though, is where I think this process needs to head. It's quite similar to non-binding arbitration, but the mediator will continue to search for a middle-ground for the parties to reach, whereas the arbitrator walks away after making his non-binding ruling. With such a massive gap between the two sides and an extreme likelihood that one of the two parties may not fully enjoy an initial ruling, this is absolutely key.

While I support Travis' enthusiasm for mediation in this context I have two comments.  First, "binding mediation" is a fairly new term which refers to a process in which a mediator assists the parties to discuss the issues and move towards resolution.  However, if no settlement is reached the mediator can, with the explicit consent of the parties, switch hats and become an arbitrator to impose a solution on the parties, which is "binding" on them.  This sounds more like a special form of med/arb to me.

Second, it irks me to hear the phrase "non-binding mediation".  Yes, it is true that a mediator's function is to facilitate discussion and not to impose a decision on the parties.  However, the whole point of the mediation process is to assist the parties to get to a place where they reach agreement.  A key principle of mediation is self-determination which places significant value on the parties, together, designing their own outcome. Once that agreement is finalized it is certainly binding on the parties and they are required to follow through.  I think what people are trying to capture in using the phrase "non-binding mediation" is that the mediator does not adjudicate (impose a decision on the parties like an arbitrator or judge).  My point is that even though participation in mediation is voluntary, the parties can come out of mediation with a binding solution.

Mediation isn't the poor second cousin to arbitration or med/arb.  It is a powerful tool that empowers the parties to reach a solution that is crafted for their specific and often complex needs.  Sounds like a viable option for the hockey dispute!

Travis Yost concludes his post with the following hopeful comment (edited by me!):

This is a problem created by the owners and players. The solution will have to be found by the owners and players. Right now, non-binding mediation is the only way to expedite such a process.

Well said.

Posted by Mediate BC Executive Director Kari Boyle.

Photo by YIFEI CHEN on Unsplash