Alternative Dispute Resolution

Alternative Dispute Resolution

1. Mediation versus Litigation

   • Advantages
     • 1. The parties are directly involved in negotiating the agreement in mediation meaning the parties can express their opinions and concerns. Litigation hearings, however, require lawyers to speak for the parties unless they are called to the stand.
     • 2. Mediation is a faster process than litigation. Litigation cases general take months to construct and up to a year or more to reach the trial stage. Mediation can be quickly scheduled usually within days and an agreement can be reached sometimes the same day as the process began.
     • 3. Mediation is a private process, so the process is not made public knowledge, unlike litigation. Litigation cases may gain media attention and negatively affect the parties or businesses involved.
   • Disadvantages
     • 1. Mediation has no formal rules governing the process. If an unskilled mediator is overseeing the process a deadlock can occur due to the lack of rules.
     • 2. The settlement reached by the parties may not be a fair settlement. If one of the parties has access to more resources than the other party, they may have an unfair advantage. If one of the parties is more skilled at negotiating, they may obtain an unfair settlement.
     • 3. During mediation, it is rare that the whole truth is revealed during the process. In litigation attorneys have the opportunity to access and submit evidence and call witnesses. Both parties in the litigation process are treated fairly which may not happen during the mediation process.

2. Mediator Qualifications

   • A mediator must be trustworthy, the parties involved must be able to discuss freely the issues and know that the information will remain confidential.
   • Approachability is a key qualification for a mediator; the goal is to get both parties to openly discuss the issues. The mediator needs to be sensitive to the emotions involved in the process and concerned that each party understands that the goal is to reach a mutual agreement.
   • A mediator must be dedicated to the process, meaning they are prepared for the meetings and work hard to achieve the best outcome. The parties should notice that the mediator puts in the extra effort to reach a fair conclusion.
   • Perceptiveness is crucial during the mediation process the mediator must be able to understand the issues presented, the options available, and the risks each bring using clear problem-solving.
   • The mediator must remain impartial throughout the process in order to reach a successful conclusion. A mediator cannot become emotional during the process or invested in an outcome.

3. Arbitration

   • Advantages
     • 1. Arbitration avoids hostility through the participation of both parties in the process. Participation in all areas of arbitration avoids hostility and allows the parties to reach a mutually acceptable decision.
     • 2. Arbitration brings flexibility to the dispute resolution process. Arbitration does not require a specific meeting place or time therefore; the parties can agree to meet at convenient times for them including evenings and weekends.
     • 3. Arbitration has no rules regarding evidence and procedures making the process easily adjusted to the needs of the parties involved. Should evidence or witnesses be required during an arbitration hearing a simple phone call is all that is needed to get the information or persons needed
   • Disadvantages
     • 3. Arbitration does not have any formal rules of evidence, this means that arbitrations can use any piece of evidence brought to them to reach a decision.
     • 2. Arbitration does not allow for appeal as the decision is final. If one party feels that the outcome was unfair, biased, or unjust they have no way to appeal the ruling.
     • 1. Arbitration has a lack of transparency due to the privacy of the procedure making the process not accessible to the public. The arbitration process may be viewed as tainted or biased due to this lack of transparency, additionally, judicial review of arbitration proceedings rarely occurs keeping the process closed to public scrutiny.

4. Arbitrator Qualifications

   • An arbitrator needs to be competent, understanding the topic and extracting a solution.
   • Commitment is a key qualification of an arbitrator, they must listen carefully, focus on the key issues, and provide reasonable and just decisions.
   • An arbitrator must have integrity meaning that the issues will be decided fairly, neutrally, independently, and without any conflict of interest.
   • An arbitrator must also have compassion understanding that the parties may have different values or cultures.
   • Courage is also necessary of an arbitrator to make tough decisions and lead the parties in new directions to reach a resolution.