What is Mediation?

Mediation is a form of dispute resolution where an independent and neutral third party assist people to resolve their disputes by facilitating negotiations between them. Mediation is not new and but has origins in all cultures. For example, in China, Confuscian principles view moral persuasion and agreement as better ways of solving a dispute than leaving the decision in other peoples hands. In Japanese and First Nations cultures, it is the leaders of the community, often elders, that help the parties resolve their disputes.

Benefits of Mediation

  • More humane approach than litigation
  • Preserves relationships which is ideal for businesses or parents with children
  • Timely: resolution of a dispute is possible within hours, days, or weeks, depending upon the nature of the conflict. Litigation can drag on for years.
  • Substantial time and money can be gained by avoiding lengthy litigation
  • Voluntary (either party can leave mediation and pursue the dispute through the court)
  • Confidential
  • Parties are empowered because they maintain control over the process
  • Win/win model of mediation means that parties are encouraged to seek their own solution according to their own needs and wants, whereas the win/lose court model renders decisions based upon other peoples lives.
  • Mediation focuses on future cooperation between the parties for mutual benefit whereas courts dredge up the past and harden feelings on the basis of “he did, she did” that to me.
  • In families, children benefit when parents talk to each other and cooperate. It is common in custody cases where parents will speak ill of the other to their children (parental alienation) and this is emotionally and psychological harmful to children of all ages.
  • Most importantly, focusing on common interests, understanding differences, and working together for a better future results in more permanent and satisfactory solutions

What is Arbitation?

Arbitration dates back to Ancient Greece. Arbitration clauses are routinely found in labour agreements and business contracts. Parties in a dispute that want an end to the conflict can freely choose between many qualified arbitrators. Similar but more informal than a court, parties refer their dispute to a mutually acceptable, independent, neutral arbitrator to adjudicate the dispute. An arbitrator's decision is normally binding upon the parties. Unlike mediation, arbitration is neither confidential or voluntary. In complex and international arbitration parties often will solicitors present. Arbitrator decisions can be appealed to the courts if the arbitrator makes a mistake in interpreting the law, otherwise, an arbitrators decision has the same effect of that of a judicial decision in court.

Benefits of Arbitration

  • More timely and less costly than litigation.
  • More private than the courts, but not confidential like mediation.
  • Parties come away with a decision that ends the dispute once and for all.
  • More informal than court.
  • More flexible than courts. For example, an arbitrator may visit the site of a dispute.

More About Mediation and Arbitration

Mediation and arbitation are sometimes a one or two stage process. Sometimes, mediation and arbitration are even combined, as an alternative to the Court and litigation. Mediation/arbitration is only suitable to sophisticated parties equal in power who desire a relatively quick, affordable, and final resolution to their conflict. Mediation, which is voluntary and confidential, is the first stage. If the mediation is successful and the parties are able to agree with one another, the mediator prepares an agreement, everyone signs it, and the process is over. If the mediation is unsuccessful, the arbitration commences. Unlike mediation, arbitration is not voluntary as the arbitrator makes a written decision that is binding on the people in conflict. If the issues are complex, parties may be required to have their solicitor prepare a brief or present arguments. The parties are free to choose another arbitrator, or retain a result by unanimous agreement. There are advantages and disadvantages to choosing to have the same mediator continue with the arbitration. The advantage is cost and time, plain and simple. The disadvantage is that people may be less likely to commit to the mediation if they fear that what they say could be used against them later in the arbitration. Result is committed to preserving confidentiality in the mediation and people in conflict may be better served by another arbitrator.