There are two worldly approaches to the branch of alternative dispute resolution (ADR) known as mediation and Arbitration that are used to resolve disputes without the need to go through the civil litigation process. However, despite both of them aiming for a peaceful removal of the intervention with the resolution, it is very difficult for them to reach any agreement in procedure, authority, and the parties allowed to keep their institutional power. This paper provides a comprehensive analysis of mediation and Arbitration, including which are beneficial and what their features and limitations are.
One mode of ADR, mediation, is distinguished by collaboration and oriented towards settling the disputing nature of parties(Verbist, 2020). A non-partisan outside party, called a mediator, acts as an intermediary when the channel of discussions and negotiations is too complicated for the parties involved to communicate directly and reach a final agreement that both parties can accept. It differs from Arbitration in that a decision-taker finds a solution and makes it legal, but in mediation, the parties see the solution together. The inclusive manner of this approach persuades the individuals to participate directly in the dialogues meant to reach a common level of understanding. As a result, both communities will be the owners of the outcome, which will then help in the acquisition of peaceful relationships. The policy has two good sides: venue and policy. The process can be made it can come out as per the needs and requirements of the parties.
In contrast to the adversarial trial setting where there is cross-examination and witnesses, Arbitration is more of a quasi-legal proceeding (though an arbitrator or a panel of arbitrators decides in the aftermath of hearing from both parties). On the contrary, while mediation does not include the arbitrator in awarding the decision, Arbitration refers to the arbitrator having the power to make a legal award, similar to passing a court ruling. Compared to the adjudication process in Arbitration, Arbitration makes the alternative method preferable in cases where parties seek an ending and resolve it without the concerns of postponements and formalities in a traditional judicial process. Furthermore, Arbitration guarantees higher confidentiality protection than court hearings, which is important since the privacy of some data not meant to be public is saved.
One of the fundamental distinctions between mediation and Arbitration is the amount of control that sides have over the outcome-determining procedure, unveils. In mediation, parties retain unremitting authority to govern the terms of their agreement, and a mediator will help guide them, offering them the necessary support and guidance. According to this, the reality of such strong power is constantly seeking out collaboration between the parties, which, in essence, is not legal rights alone but instead a response to the needs based on interests and concerns. On the other hand, Arbitration is all about losing control of the parties because, unlike the courts, its decisions are no longer part of the parties’ control. While Arbitration allows a more concrete and real resolution of the dispute, the intervention of the impartial arbitrator removes authentic parties’ autonomy and procedure flexibility.
It is necessary to note that Arbitration and mediation are other options for settlement(Wiradisuria et al., 2020). Alongside these factors, there is one that plays an important role, and it is the bindings of legal formalities. While choosing a type of Arbitration, the winner normally takes into account the possible law, terms of the contract, and facts during the hearing. Arbitrators’ rulings take into account legal concepts and analogous cases, yet strict rules of evidence and procedural details do not bind arbitrators. It is what makes the process swifter and more user-friendly. However, mediation does not have a doctrine of law to turn to and concentrates on finding solutions based on the parties’ interests which they negotiate. It is an evolution of the existing judiciary system that goes beyond the limitations of the courtrooms by giving birth to enlightening and innovative solutions.
The advantage of both mediation and Arbitration, however, is the cost, which may be determined by the dissemination of the complexity of the dispute and the use of legal representation as well as by the choice of method. As usual with the mediation procedure, issues are handled less formally; fewer timeframes and limited preparation time are required due to the mediation’s nature. Along with this, mediation is great for the parties as they will learn to work together and solve problems, which is likely to minimize the period some disputes take and also lower the amount of money they will spend on litigation processes or Arbitration. On the other hand, the arbitration procedure requires some costs because most of these processes are similar to litigation. These costs may include arbitrator remuneration, legal fees, and discovery, among others.
In conclusion, mediation and Arbitration are factors that make litigation irrelevant by giving the parties the chance to discuss the problem effectively, confidentially, and in a controlled way. One of the crucial features of the mediation process is the focus on cooperation and self-determination. In contrast, in Arbitration, the process is more controlled (and there is a final and binding decision) by a neutral third party. Suppose the parties are able to realize and value the intricacies as well as the disparities in the two processes. In that case, they will have the ability to make effective and tailored conflict resolution strategies that are suitable for their specific and individual circumstances and needs.
References
Verbist, H. (2020). Mediation as an Alternative Method to Settle Investor-State Disputes. Springer EBooks, pp. 1–28.
Wiradisuria, E. R., Dwi Heri Susatya, & Andjar Bhawono. (2020). Arbitration as an Alternative to Non-Litigation Settlement in Medical Cases.
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