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Mediation & Arbitration as Effective Dispute Resolution Methods

by Advocko
Mediation & Arbitration as Effective Dispute Resolution Methods

Alternative dispute resolution consists of different forms of dispute solution instead of litigation. The word’ ADR’ is widely used in daily discourse as a catch-all phrase, demonstrating consistency in process and conclusion in all various forms. At Advocko, we understand that the correct ADR approach may differ depending on the complexity of the conflict and are committed to helping our customers make the right decision.

 Arbitration

Arbitration is a mechanism in which an arbitrator takes over the decision-making role usually held by a judge. Similarly, judicial rules are replaced by arbitration laws. The standard procedure is to appoint each of the two parties an arbitrator, who will then choose a third arbitrator. Parties can opt for a single arbitrator, as an alternative.

After arbitrators have been chosen, a considerable period of time may be spent as lawyers for both sides are involved in collecting and sharing evidence, writing briefs and planning cases. Arbitration, however, is a much quicker form of dispute settlement than litigation at most times. The arbitration procedure itself resembles a mini-trial. Counsel make representations similar to an actual jury, which on behalf of the parties involves no personal involvement. The arbitrators, in turn, make a majority decision binding on parties.

While mediation leads everyone to negotiated settlements out of the box solutions, more complicated and legally advanced issues occasionally involve an expert’s adjudication. Consequently, arbitration requires parties to appoint experts to examine the evidence and determine the dispute, essentially having the same legitimacy and legal authority as a court of law, but with lower costs and faster resolution. For more nuanced cases, what a mediation settlement can lack is basically an expert approval stamp in the same way as an arbitration. This helps parties to get a better understanding of how a court can view a specific issue, and thus discourages them from violating the terms of the order.

Mediation

Mediation is a more efficient means of settling conflicts. When the decision to use mediation has been made, the parties will effectively continue the process at the next appropriate moment. In comparison to arbitration, mediation hearings do not require evidence related procedures or representations from lawyers, since they appear to concentrate on directly involved parties. Even the most complicated mediation can be resolved within one or two days, the expenses are not only minimised but the time spent away from the company is also minimised.

In fact, mediation is primarily oriented towards a peaceful resolution between the parties. The third party mediator is there simply to facilitate the dialogue and, according to an agreement, does not assume the position of decision-maker, which all parties maintain. Participants are permitted to engage with each other directly, with or without counsel, and to partake in a frank and open discussion on the conflict. This individual nature of negotiation by encouraging parties to put their complaints to each other and to be jurors of their own conflict ensures that long-term business relationships do not need to be broken due to minor or even major disputes. Settlements consisting of unusual solutions such as an apology or an explanation are not uncommon, and therefore allow parties to continue to work together in the future.

The fact that any negotiated settlement is subject to negotiation between the sides may be a justification to argue that the sides are more likely to stick to the settlement terms. Parties commit only on what they find fair and rational, thereby greatly minimizing the need for compliance proceedings. This adds to the overall cycle pace by which not only the conflict itself is resolved expeditiously, but also completes the resolution swiftly. Furthermore, negotiated negotiations are reported in writing as a way of protecting the rights of all parties. Therefore, the arrangement will typically be executed as a contract in the unusual case under which the need for compliance actually occurs.

Mediation is an alternative to lawsuits and arbitration that is considerably cheaper. While litigation costs far outweigh any other method of dispute resolution, arbitration itself can be relatively costly. Because arbitration procedures and evidentiary rules require complete participation of legal counsel in the compilation and presentation of evidence, legal costs that escalate exponentially depending on the nature of the dispute.

Like in court, both sides would have accrued significant expenses in an arbitration before making a single submission. On the other hand, mediation can take place without the presence of legal counsel. Even where legal counsel is involved, he or she is simply expected to assist parties in the course of the mediation rather than gather information or make claims before a judge or arbitrator. The limited capacity in which he or she contributes to the process ensures that costs remain reasonable. Moreover, mediation in the pre-mediation phase of the protocol involves no investment on behalf of either party.

Conclusion

Both arbitration and mediation ultimately offer effective, cost-effective and swift alternatives to litigation. Arbitration can be more suitable for situations involving complicated factual questions, as well as technical convolutions. Sometimes parties may want an expert to decide their case and give a binding judgement to also prevent a lengthy, costly litigation process. By comparison, mediation matches situations where parties are able to sit together and compromise, investing far less time and resources than in an arbitration.

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