Mediation and Arbitration

Alternative Dispute Resolution (ADR)-Mediation and Arbitration
Mediation and arbitration are not the same, but they are both alternatives to Court Proceedings and have costs advantages. Together they are called Alternative Dispute Resolution or ADR.

Mediation is a process where with the help of a mediator, the parties are encouraged to settle a dispute themselves by negotiation. It is a process in which a neutral person facilitates communication between parties to a dispute to assist them in reaching a mutually acceptable agreement.

The mediator will offer a new perspective to the dispute, high light relevant matters, and form a bridge in negotiation. They will not however decide the case, or tell either party what they should agree.

Arbitrations are different. Arbitrators do decide cases. Arbitration is a process in which one or more arbitrators hear evidence from the parties to a dispute and then issue an "Award" in settlement of the dispute. In most instances the arbitrator will also provide an Opinion explaining the reasoning that led to the Award. Usually and unless decided otherwise by the parties when agreeing to use arbitration, the award will be binding and capable of being enforced as a Court Judgment.

Often business agreements and particularly contracts of insurance will contain an ‘arbitration clause’ in which the parties will have agreed to refer any dispute to arbitration rather than a Court.

Apart from costs advantages, there is an advantage that the arbitrator may well be chosen for his understanding and expertise in the subject of the dispute. As an example, with a building dispute, this might well be better resolved by an independent surveyor or architect, rather than a judge who may have no particular knowledge of building procedures.

Arbitrations can be either binding or not binding, depending upon any arbitration clause or agreement between the parties.

The first stage will be to try and agree the arbitrator. Lists of qualified arbitrators in most matters are available. If agreement is not possible, an arbitrator can be appointed by the Institute of Arbitrators. Once appointed, the Arbitrator will decide on a procedure and time table, after consultation with the parties. Sometimes a Hearing will be held, or it can be decided that the Arbitrator will make his decision ‘on the papers’, that is after reading all the evidence and written submissions by the parties.

More on mediation

Mediation can be used to resolve just about any dispute. From resolving conflicts between families or neighbours to workplace disputes, and grievances against public sector service providers such as the health or education services.

It is a flexible process but in most types of mediation, the following steps take place:

* If one person asks for mediation, all those involved are contacted to check they agree to take part. Anyone can withdraw at any stage if they want to.
* Everyone involved is then visited individually by mediators. The mediators will ask each of them to explain how they see the current situation, and how they would like it to be in the future. They will also ask what suggestions the parties have for sorting out the disagreement.
* Information shared during the mediation is private and confidential (with the exception of disclosure of serious abuse) unless otherwise agreed.
If both parties agree to come to a joint meeting, the following steps take place:

* Mediators will explain the structure of the meeting and ask everyone to agree to some basic rules, such as listening without interrupting and not using offensive remarks.
* Each person will then have a chance to talk about the problem as it affects him or her. The mediators will try to make sure that everyone understands what each person has said, and allow them to respond.
* They will then help both parties identify the issues that need to be sorted out. Very often this leads to solutions that no one had thought of before, helping parties to reach an agreement.
* The agreement is usually written down, and signed by both parties and the mediators. However, it is not legally binding and cannot be enforced in court unless the parties decide to make it a legal contract. The agreement does not affect anyone's legal rights either, allowing the freedom to find another way of dealing with the dispute at any time.

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