ir dispute to arbitration at the option of either party; and unless the award of the arbitrator(s) is overturned by the courts, it has the force of law, and is subject to much more limited judicial review than are court judgments. Hoffman defined mediation as "a process whereby a neutral third party assists disputing parties reach a mutually acceptable solution." An important difference between arbitration and mediation is that the arbitrator, like a judge, can resolve the dispute, but the mediator, according to Marcus et al. "has no power to impose an outcome on the parties, [rather he or she helps] them to better understand their options, choices and consequences" and "serves as a catalyst for settlement."
The enforceability of PDAAs is a relatively recent development. Common law courts, which were jealous of their prerogatives and regarded arbitration as an inferior form of
civil justice, generally held PDAAs to be unenforceable. Sec. 2 of the Federal Arbitration Act provided that PDAAs "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."
In the post World War period, the Supreme Court held most PDAAs enforceable as a matter of federal law. See Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395 (1967), and Southland v. Keating, 465 U.S. 1 (1984). Almost all states have enacted statutes modeled on the Uniform Arbitration Act, 7 U.L.A. 5 (1985), under which most PDAAs are enforceable in state as well as federal courts. Once the participants have agreed to the terms of a mediated settlement, it is enforceable in most states.
As processes, arbitration and mediation differ from those in court. Arbitrators are not required to adhere to all the rules of evidence and procedure. Arbitration proceedings tend to be fairly informal, as compared to court room processes. Nevertheless, arbitrators must make a variety of determinat...