5. What is the difference between mediation and arbitration?
Mediation is a private negotiation with the help of a third impartial party (the mediator) who is committed to achieving the settlement of the dispute. In mediation, the parties alone decide how the dispute that will resolved.
Arbitration is, in essence, a private trial, where one or three arbitrators serve in the role of judge and jury. While arbitration is a private process, where its decisions are usually binding, it differs from the civil trial process because there is no appeal from an arbitration award. All of the decision-making authority rests with the arbitrator.
Arbitrators are not necessarily neutral. In arbitrations where the panel is composed of three members, each party appoints an arbitrator. Each arbitrator is beholding to the party that appointed them. The 3rd arbitrator is intended to be neutral. In cases where there is a single arbitrator, there is the hope but no guarantee that the arbitrator would be competent and impartial.
6. Why should parties engage in ADR instead of litigation?
Aside from the parties having the advantage of a private mediation forum, as well as the benefit of saving time and money, mediations can be scheduled much sooner than trial or arbitration dates. If time is an important factor, then mediation offers a speedy resolution of conflict. With mediation, it is also possible to create remedies that are innovative and not available in litigation or arbitration. The preservation of a business or personal relationships has a better chance of succeeding through mediation than it would by engaging in litigation or arbitration.
7. What advice can you offer to business people who are searching for the right mediator?
In legal communities, good mediators are well known. Mediation has been popular for several decades and is a reputation-based business. Asking your attorney for recommendations is a good start. The mediator’s subject matter expertise might be important, particularly when dealing with more specialized areas such as patents or technology. Other qualities to look for include the mediator’s communication style and professional demeanor. Actual mediation sessions can vary greatly in length, so selecting a mediator who has the endurance to go the distance is important.
8. Do you have any sage words of wisdom to offer our readers?
Conflict will always be with us—that’s a fact of life. When you’re embroiled in conflict, it’s easy to be consumed by emotion that’s disproportionate to the actual dispute. Mediation helps people, businesses, organizations and governmental entities to resolve conflict. Emotions almost always cloud judgment. One of the challenges of the mediator is to reduce the emotional volatility of the parties so everyone stays on the path to resolution. Parties who agree to mediation are able to take ownership of the conflict and are able to gain greater peace of mind.
The
Benefits of
Mediation
- The active participation of both parties gives them control over the outcome.
- Both parties retain responsibility for the outcome.
- Mediation has potential of avoiding time and expense that is associated with trial and arbitration.
- Privacy is really important. Trials are public. Mediations are private.
- Greater value is created for the parties when compared to other options such as trials and arbitration.
- Mediation saves time, money and minimizes emotional distress.