Comparison between Mediation and Arbitration

Comparison between Mediation and Arbitration

Introduction

            Mediation is a method of conflict resolution where the parties in a dispute find a solution without going to a court of law. The process involves intervention by a mediator who helps the conflicting parties to come to an agreement. Berger and Center for Transnational Law (2009) explicitly assert that the role of a mediator is to assist the conflicting parties to obtain a solution that will be favourable to both. Arbitration is dispute resolution method that occurs outside law courts in which a third party called an arbitrator collects the evidence pertaining the conflict and makes the legally binding decision on both sides enforceable in the court of law.

Mediation

Functions and roles

            Mediation helps in the establishment of an appropriate environment through the third party where the conflicting parties together with the mediator can sit and resolve the disputes. The technique through a mediator provides procedure framework through different phases of the process of mediation. Berger and Center for Transnational Law (2009) note that through the acts of a mediator, mediation controls the environment of emotions. Improvement of the situation can be through application of restrictive measures to the parties through the provision of neutrality sense among the parties and minimising anxiety.

Mediation also assists the conflicting parties to negotiate. As Penn State Institute of Arbitration Law and Practice and Institute for Transnational Arbitration (2007) state, communication among the belligerents tends to be ineffective thereby causing conflict to escalate among the individuals. Mediators function to improve the communication among the parties through exercising good communication, listening skills and identifying the non-verbal arguments from mediation context.

Mediation facilitates pro-active negotiations among the conflicting parties (Berger & Center for Transnational Law, 2009). The process can enhance experience and expertise in the styles of negotiation enabling the individuals to negotiate productively, constructively and efficiently. Mediation through the acts of the mediator serves as a catalyst for effective and efficient problem solving such as through application of settlement methods from the mediation experience.

Effectiveness of Mediation

             Penn State Institute of Arbitration Law and Practice and Institute for Transnational Arbitration (2007) reveal that mediation is an effective method of conflict resolution. The third parties termed as the social network, authoritative and independent mediators tend to be respected members of the community or society and have the perception of being fair from colleagues in society. In the case of a social network mediator, mediation acts through the concern for the conflicting parties via follow ups even after the negotiation maintaining a long-term relationship between the parties. Independent mediator helps in the development of mutually and acceptable voluntary solutions as the mediator has no connection with the parties before the conflict occurrence.

Types of disputes that can be utilized by mediation

             Berger and Center for Transnational Law (2009) stipulate that the method mostly resolves non-criminal disputes that include cases involving leases, contracts breaking, ownership in small businesses, employment issues and family and divorce conflicts. For example, in the event of divorce, the couples may apply mediation to find a solution on child care agreement. The partners in business can also employ mediation to arrive at an agreement to divide or close the venture. The work of Berger and Center for Transnational Law (2009) shows that mediation is applicable in cases that do not raise legal concern including family conflicts and employees in an organization.

Disadvantages of mediation in conflict resolution

  • Mediation is not an appropriate method of obtaining truth of the dispute. As compared to cases settled in the courts where many people can testify and give evidence that is not available in mediation.
  • Mediation can result in unfair decisions as compared to cases settled in courts where procedures are developed to ensure fairness between the conflicting parties. The method does not have formal rules to apply in conflict resolution.
  • Mediation does not always result in the settlement of a dispute between the parties. For example experts in relationships, abuse fails to support the application of mediation solving domestic challenges.

Arbitration

Functions and roles of arbitration

            Arbitration acts reasonably by giving the parties a chance to express the case (Penn State Institute of Arbitration Law and Practice & Institute for Transnational Arbitration, 2007). The method through the function of an arbitrator plays a fundamental role in making a decision regarding the case that is enforceable by the courts to ensure that the parties adhere to the rules and guidelines set. Arbitration adopts procedures that apply to cases of concern by the parties.

Effectiveness of arbitration

            The work of Berger and Center for Transnational Law (2009) shows that arbitration applies similar rules to those adopted in the courts of law that helps to solve the dispute fairly.

Cases that can be utilized by arbitration

            Reference to Penn State Institute of Arbitration Law and Practice and Institute for Transnational Arbitration (2007) reveal that apart from family matters and criminal cases, any other civil case that the conflicting parties can take to the courts of law can solve through the application of arbitration. Such disputes include for example conflicts in telecommunication that can be resolved between the two parties. Moreover, banking software disagreement between a banking manager and the system administrator can call for arbitration to solve the conflict.

Drawbacks of arbitration

Berger and Center for Transnational Law (2009) argue that that in the case of binding arbitration, the parties may not have the opportunity to change the decision made. Also, arbitration may involve a lot of money as fees to the arbitrator making the method uneconomical. The process to acquire the opposing party when using arbitration may be limited. Some evidence may fail to be considered in arbitration because of application of rules of evidence.

References

Berger, K. P., & Center for Transnational Law. (2009). Private dispute resolution in international business: negotiation, mediation, arbitration. Alphen aan den Rijn [u.a.: Kluwer Law International. N.p.

Penn State Institute of Arbitration Law and Practice, & Institute for Transnational Arbitration. (2007). World arbitration & mediation review. Huntington, NY: JurisNet, LLC. N.p.

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