MEDIATION

MEDIATION

1. ARBITRATION

   • LITIGATION
     • ADVANTAGES
       • Can create precedent that will prevent future ILOs from getting away with the offence
       • Can expose the ILO to increased public scrutiny as your case gains access to evidence
       • Can stop or delay development while legal issues remain unresolved
     • DISAVANTAGES
       • Can create a damaging precedent if you lose, making it harder for other communities to defend themselves against the offence in question
       • Benefits the wealthier party. Litigation is not a process of solving problems, but a process of winning arguments
       • Can be very costly and use up resources (financial and personal) that could have been used in other ways
   • ADVANTAGES
     • AVOIDS HOSTILITY: Because the parties in an arbitration are usually encouraged to participate fully and sometimes even to help structure the resolution, they are often more likely to work together peaceably rather than escalate their angst and hostility toward one another, as is often the case in litigation.
       • Faster than litigation. According to a recent study by the Federal Mediation and Conciliation Services, the average time from filing to decision was about 475 days in an arbitrated case, while a similar case took from 18 months to three years to wend its way through the courts.
   • DISADVANTAGES
     • Limited recourse. A final decision is hard to shake. If the arbitrator's award is unfair or illogical, a consumer may well be stuck with it and barred forever from airing the underlying claim in court.
     • Questionable objectivity. Another concern is that the process of choosing an arbitrator is not an objective one, particularly when the decision-maker is picked by an agency from a pool list, where those who become favorites may get assigned cases more often.

2. DISADVANTAGES

   • Mediation does not always result in a settlement agreement. Parties might spend their time and money in mediation only to find that they must have their case settled for them by a court. Opting for mediation, therefore, presents something of a risk. Further, if mediation fails, much of a party’s “ammunition” might have already been exposed to the opposing party, thereby becoming far less useful in the ensuing trial
   • Mediation has no formal discovery process. If one of the parties to a dispute cannot fully address the case without first receiving information from the other party, there is no way to compel disclosure of such information. The party seeking disclosure must rely instead on the other party’s good faith, which may or may not be enough.
   • Mediation lacks the procedural and constitutional protections guaranteed by the federal and state courts. The lack of formality in mediation could be a benefit, as noted above, or a detriment. Mediation between parties of disparate levels of sophistication and power, and who have disparate amounts of resources available, might result in an inequitable settlement as the less-well positioned party is overwhelmed and unprotected

3. ADVANTAGES

   • Mediation is relatively inexpensive. Seeing a case through trial is an expensive proposition.
     • Mediation is relatively simple. There are no complex procedural or evidentiary rules which must be followed. While most would agree that a general rule of fairness applies, the maximum penalty a party can impose for foul play is to walk away from the mediation and take his chances in court.
       • Mediation is relatively simple. There are no complex procedural or evidentiary rules which must be followed. While most would agree that a general rule of fairness applies, the maximum penalty a party can impose for foul play is to walk away from the mediation and take his chances in court.

4. RESOURCES:

   • Advantages of Mediation. (n.d.). Retrieved November 27, 2019, from http://www.academyofexperts.org/alternative-dispute-resolution/what-mediation/advantages-mediation.
     • Allen, R. C. (2019, November 18). What are the Advantages and Disadvantages of Arbitration?: Allen, Allen, Allen & Allen. Retrieved from https://www.allenandallen.com/arbitration-advantages-and-disadvantages/.
       • Jones, D. (2019, June 12). 7 Advantages of Litigation in Dispute Resolution. Retrieved December 2, 2019, from https://www.glaisyers.com/advantages-of-litigation-in-dispute-resolution/.