What is arbitration?
Arbitration is an alternative means of settling a dispute by impartial persons without proceeding to a court trial. It is sometimes preferred as a means of settling a matter in order to avoid the expense, delay, and acrimony of litigation. There is no formal discovery and there are simplified rules of evidence in arbitration.
Who decides a case in arbitration?
The arbitrator or arbitrators are selected directly by the parties or are chosen in accordance with the terms of a contract in which the parties have agreed to use a court-ordered arbitrator or an arbitrator from the American Arbitration Association. If there is no contract, usually each party chooses an arbitrator and the two arbitrators select a third to comprise the panel. When parties submit to arbitration, they agree to be bound by and comply with the arbitrators’ decision. The arbitrators’ decision is given after an informal proceeding where each side presents evidence and witnesses. Arbitration hearings usually last only a few hours and the opinions are not public record. Arbitration has long been used in labor, construction, and securities regulation, but is now gaining popularity in other business disputes.
When is arbitration used?
Some arbitration proceedings are mandatory, such as many labor disputes. Other arbitration proceedings are incorporated into contracts in the event of a dispute. Couples who sign cohabitation agreements or divorce agreements often include a clause agreeing to go to arbitration if any dispute should arise, thereby avoiding the delay, expense, bitterness and formality of litigation. Companies may seek arbitration of disputes for public relation reasons, so as to avoid the negative publicity of a trial. Can I resolve disputes outside of court? Every dispute in any sphere of life can be mediated or arbitrated. Families, friends, neighbours, co-workers, business partners, employers/employees…..all can resolve disputes outside of the court system. Maintain your relationships, whether business or personal.
What is Mediation?
Mediation is a voluntary, confidential, non-binding and without prejudice process of intervention in a dispute or negotiation by an impartial third party who has no decision-making power. The third party assists disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute by structuring the negotiation, maintaining the channels of communication, assisting each party to articulate their needs, identifying the issues, and assisting the parties in creating alternative ideas to resolve the dispute.
It is a voluntary process which is undertaken on a confidential basis – that is, nothing said or done in mediation is admissible as evidence in legal proceedings up to the point when agreement is reached.
The mediator acts as a catalyst for the process, helping parties reach agreements by identifying issues, exploring possible bases for agreement and the consequences of not settling the dispute. It is a cooperative, interest-based approach to conflict resolution.
Why should I mediate?
Many persons are overwhelmed by the complexity, cost, stress, publicity and time involved in taking a case through the over-burdened and centralized judiciary process, more especially when they are absolutely uncertain about the outcome of the presiding judge’s ruling.
With mediation, there is an opportunity to use an expert in communication to facilitate the disputants in resolving the issues themselves, thereby preserving the valuable associations in commerce and fundamental family relationships. Mediators assist in building bridges; by assisting the parties to a dispute to retain control and the outcome of their present dispute and future disputes.
What kind of cases are appropriate for Mediation?
Where there is some kind of a relationship between the parties, mediation can be successful. This relationship may be, but not limited to, a family relationship, neighborhood, community relationships, commercial disputes, contractors and building disputes, landlord-tenant disputes, environmental issues, labor disputes, and divorce, custody and other family disputes.
What disputes cannot mediate?
Constitutionals disputes and cases that require judicial precedence are not suitable for mediation. Cases where angered and bitter parties who “demand their day in court” and will not negotiate in good faith are not recommended for mediation. Disputes involving domestic violence, child and sexual abuse should not be mediated. Disputants who do not follow the guidelines of the mediation process. Parties who make use of the mediation process to seek out and gather information as delaying tactics or for evidence in litigation. Agreements which lead to inequitable resolutions; illegal agreements; unlawful acts; or where an innocent third party is disadvantaged.
What are the principle characteristics for Mediation?
Mediation is a voluntary and non-binding procedure controlled by the disputants. Mediation is a confidential procedure. Mediation is an interest based procedure. Unlike a judge or an arbitrator, the mediator is not a decision maker. A party to mediation cannot be forced to accept an outcome that it does not like. Mediation’s confidentiality allows the disputants to negotiate productively and freely without the fear of publicity. If a party chooses to disclose confidential information or make admissions, that information cannot be provided to anyone, including subsequent arbitration or in court litigation. Because of the non-binding and confidential characteristic of mediation, it generates significant benefits and involves minimum risks. Even if a settlement is not achieved, mediation never fails, as it causes the disputants to define the facts and issues of the dispute, and better understand the culture of the conflict.
Mediation vs. Litigation
Interests vs. Rights
Mediation is concerned with the interests of the parties, preserving relationships, building bridges and restoring harmony between the parties, within communities, commerce, neighbors, and families. In mediation, the parties consider the problem as a joint one that can be solved by looking into the future. Litigation, a highly structured and formal process, focuses on past evidences, facts of the issues and the question of legal rights. Litigation places great emphasis on procedure, adherence to formal rules of evidence, the opportunity to appeal an unfavorable outcome, and other attributes that make proceedings burdensome, arduous, grueling and infinitely protracted.
Economy vs. Extravagance
Mediation is more economical and cost effective in relation to litigation.
Speedy vs. Tardy
Mediation is rapid in relation to the over-burdened courts. Whereas mediation can be arranged in three to four weeks after receipt of the initial instructions from the parties, a court hearing could take years.
Control vs. Out of Control
Mediation is an informal process designed to get the parties, who have the best understanding of the contact and the relationship, involved in finding a solution to the problem. Irrespective of the disputants being represented by council, the mediation belongs to the parties. In other words, they control the process facilitated by the mediator(s). The parties themselves make the decisions and the final resolution to accept the terms of the settlement. Thus, it is the disputants’ objectives that motivate and energize the interactive process in mediation. In the litigation process, the decisions are out of the hands of the disputant and their legal representatives and in the control of the judicial system and a third party, namely the judge, who cannot enforce judgment against a bankrupt individual or an insolvent company.
Certainty vs. Risk
Mediation avoids risks against false evidence and the fallibility of judgments. Outcomes in the litigation process are uncertain and the victory for one party maybe Pyrrhic. Mediation allows for disputants to concentrate on the best mutual outcome.
Confidentiality vs. Publicity
The mediation process is absolutely confidential, informal and flexible under a legally enforceable contract; whereas litigation is open to the public that has the high probability of ruining reputations and destroying relationships. Who really wants to wash dirty linen in public?
Tranquility vs. Stress
Stress in a major factor in the litigation process, whereas mediation avoids prolonged trauma, tension and anxiety, since the disputants themselves are engaged in the process and the creative development of their solutions.
Conflict Resolution vs. Case Settlement.
Mediation seeks to resolve disputes and conflicts whereas litigation seeks to settle cases. A mediated settlement is less likely to be influenced by the gladiatorial, adversarial, exaggerated and intimidation of a court process which favors one party over another. Based on evidence, precedent, and law, cases are settled in court; whereas conflicts and the issues that drive the disputes are resolved in mediation which provides the potential for the parties to exercise self-determination to arrive at, agree to and conclude their own creative solutions.