Mediation and Arbitration

Alternative Dispute Resolution or ADR.

Mediation and Arbitration

Alternative Dispute Resolution (ADR)

Mediation and Arbitration are both forms of alternative dispute resolution but are completely different. They are both however alternatives to taking a dispute through the court system. The court process in the UK is adversarial and tends to pour fuel on a smouldering fire rather than quench it. Following a court case, feelings of anger towards the other party can go on for years. There are better and more sensible ways of resolving differences,.Ways which are less expensive, easier to navigate, totally confidential and more likely to provide a result which everyone is happy with.

If you are able to settle your case outside of a court, you are going to save yourself a lot of work, expense, stress and delay. Try first settling directly with your opponent and if this is not possible,try to agree how the issues between you could be best resolved. Only if this fails and you have exhausted all other ways of settling should you consider court action as the last resort.

 

Mediation

The mediation process is flexible and informal and has the objective of trying to find a solution which both parties can live with, rather than deciding rights and wrongs. It will be an agreed solution, so it is more likely to be complied with than if it had been imposed by a court. Filing a court action will always constitute a hostile act, which will harden attitudes and make settling the dispute more difficult. The consequence of court proceedings will almost always be the annihilation of normal relationships between you and your opponent. The legal system is designed to be adversarial, and even if you were not on bad terms with your opponent beforehand, you can guarantee that you will be after court proceedings. The relationship between the parties however, who have managed to agree their differences without beating each other over the head, is more likely to survive than where they have won or lost following a court hearing.

The advantages of mediation are many. By giving you the opportunity to meet face-to-face with the other party, you are able to speak your mind, fully explain your position and get your grouse off your chest. It will lead to better communication with your opponent, which can only help both of you to resolve the issues between you. You will get a better idea of the strengths and weaknesses of your case and that of your opponent, and help you to understand any underlying issues or problems which may have led to the dispute. Most important also is the availability of creative solutions which would not be available from a court.

Mediation looks to the future and not to the past. A mediator will encourage you and your opponent to not look to blame each other for what has happened in the past and led to the dispute, but to look forward in order to find a solution to the problem and reach a settlement to put it all behind you. The aim of the mediator is to assist you both to reach a solution yourselves and, unlike the court, not to impose a settlement on you both. If this is not possible and agreement cannot be reached, the mediation will come to an end and either party is free to start court proceedings if they so wish. All that was said in mediation is confidential and cannot be disclosed to the court in subsequent proceedings.

Even if you believe that mediation would be a waste of time, you must not reject it out of hand. The courts have powers, and are likely to penalise a party by not awarding them costs, if they do not agree to mediate before taking court action. A claimant who refuses an offer to mediate and instead issues court proceedings could well not be awarded the costs of issuing a claim and attending court, even should he win. Just as important is that showing an offer to mediate and that the refusal left you no alternative other than to issue a claim will put you in a good light with a judge.

Mediation by its nature however will only be successful if both parties are willing to compromise, so as to reach a solution. It could be inappropriate in disputes that have little room for compromise. You can find a mediator through the Civil Mediation Council or agree one with your opponent. Many advertise online.

 

Arbitration

Arbitration is totally different from mediation. Whereas mediators do not decide the issues and only help the parties to come to an agreement between themselves, arbitrators decide a case much as would a judge. The main difference is that the rules of an arbitration can be fixed by the parties and, as this is an out of court process, the rules of procedure of the court do not apply. Preparation of the case for arbitration is therefore likely to be simpler for a litigant in person than preparing for a trial at court. The only common factor with mediation is that it is controlled by the parties.

The decision of an arbitrator will usually be binding upon the parties, as would be the decision of a judge, and can be enforced as a court judgement. Arbitrators’ decision can be registered with the court and thereafter enforced, in exactly the same way as a court order. If you decide to go to arbitration with your matter, therefore it will be decided once and for all, just as with a court hearing, and you will be bound by the arbitrator’s decision.

Arbitrations are most suited to money claims and those of a contractual and technical nature. If your dispute turns on issues where technical experience would be useful to give an understanding, such as with building and construction or the technical side of a business, it could well be better to have it decided by an arbitrator with knowledge of these areas rather than a court judge with no specialist knowledge other than the law. They are not particularly well suited to family or neighbour disputes, which often contain a large emotional element.

Just as with mediation, you will need to agree with the other side to arbitrate, unless you have a contract with them containing an ‘arbitration clause’, in which case you will have already agreed to arbitrate any dispute that occurs. Arbitration clauses are common in construction contracts, employment contracts and many of those for the provision of professional services. By agreeing to arbitration, you will usually be giving up your right to take the case to court.

Although not as formal as court proceedings, an arbitration will follow an agreed procedure and not have the informality of a mediation. Rules of evidence will need to be established, although these are likely to be more relaxed than with court proceedings. The arbitration process is adversarial in the same way as with that of the court, and similarly results in an antagonistic approach.

There are many organisations which provide arbitration services and have panels of arbitrators with experience in a variety of fields. They will be able to provide a list of suitable arbitrators, and it will be for you to agree this with your opponent and negotiate the arbitrator’s fee. In this, it will be very similar to selecting a mediator.

If you decide to go to arbitration, the question will arise as to whether you need to instruct a lawyer. In most mediations you will not, but as arbitrations are akin to court proceedings, in that legal issues will be critical and as you will not be able to have a second ‘bite of the cherry’, it may well be wise to do so. You will need to prepare your case for presentation to the arbitrator and, unless the facts and legal implications are very straightforward, you could be disadvantaged by not having a lawyer to help.

Arbitration is likely to be less expensive and quicker than court proceedings. An arbitration hearing can usually be arranged with a minimum of delay and the arbitrator’s fees may well be less than court fees for a fully contested case. If there is a disadvantage, it is that arbitration does little to heal bad feelings between those involved. Unlike mediation, it does not look to the future but focuses on the past and issues of right and wrong, rather than what now needs to be decided to resolve the dispute and allow the parties to move on.

 

 

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