The Basics of Alternative Dispute Resolution

The Neutral

In ADR, trained, impartial persons decide disputes or help parties decide disputes themselves. These persons are called neutrals. Neutrals are normally chosen by the disputing parties or by the court. Neutrals can help parties resolve disputes without having to go to court and follow the formal courtroom procedures. You often have more time and flexibility to fully explain your side of the case using ADR than you would in court.

WHAT TYPES OF CASES ARE SUITABLE FOR ARBITRATION OR MEDIATION?

Mediation and arbitration are especially effective for legal disputes that often arise in the business world. These disputes are more professional than personal, with both sides focusing on their bottom line. When no one wants the expense of a trip to the courtroom, mediating or arbitrating a legal matter becomes a far better option.

Some of the most common legal issues that are resolved through mediation or arbitration are:

Business and contract disputes,
Construction issues, like a builder’s breach of contract,
Commercial and residential landlord-tenant matters,
Real estate issues, including commercial lease disputes,
Commercial evictions, including evictions for failing to pay rent,
Business litigation, especially those involving small businesses or businesses that are in the process of closing,
Employment litigation issues, and
Breach of contract

Alternative Dispute Resolution refers to a number of recognized methods of settling disputes outside of the courtroom. Mediation and arbitration are two of the most common Alternative Dispute Resolution methods.

Mediation

In Mediation, a neutral third party (a Mediator) helps disputing parties reach a mutually acceptable agreement.

Both parties meet for what is essentially a settlement conference, presided over by a mediator. Each side presents their side of the story and explains what they think should happen. The mediator will then help the parties come to a mutually-agreeable resolution to their problems, either by advising the parties how a court would likely rule on the dispute, or by helping them find a good way to compromise.

Mediation is a voluntary process designed to reach a mutual agreement. Those who use mediation should expect to argue their perspective, provide evidence and be willing to give up certain demands to determine an arrangement that satisfies all parties involved.

Unlike arbitrators and judges, mediators do not have the authority to make a final decision—but they possess the conflict resolution skills and legal knowledge needed to facilitate legal discussions.

What is Mediation? (from Dwyer mediation).

In Mediation, a neutral third party (a Mediator) helps both parties resolve their disputes and reach an agreement. The Mediator works closely with and for both parties but is not an advocate for either.

Mediation differs from litigation. In litigation, the entire process is wired for trial. The focus is on winning and losing, which destroys families. The approach and attitude is adversarial and competitive. There is no place for emotion or a person’s feelings about whether a result feels fair.

The Mediator’s role differs from a lawyer’s role. The Mediator does not try to maximize the “winnings” of one party at the expense of the other, but rather works to help both parties meet their needs and interests.

Advantages of Mediation:

Mediation is collaborative;
It is less intimidating than a trial or arbitration
It is relatively inexpensive when compared with the cost of litigation.
Mediation is fast. It takes a fraction of the time it takes to go to trial, or even to settle a case in the court system.
Mediation participants report greater satisfaction because they (not lawyers or a judge) create the terms of their own divorce agreement. The Mediation clients are the judges of what feels fair.
Mediation affords all participants much more privacy than litigation.

Arbitration

The term arbitration refers to the process of a neutral party, known as an arbitrator, being granted the ability to make a final decision on a legal dispute.

Although they are structured similarly to court hearings, arbitrations are generally shorter, more private and performed on a smaller scale. An arbitrator will listen to each party’s argument, examine evidence and ultimately make a final verdict on the issue.

An arbitrator’s decision may be a binding decision or non-binding decision, depending on the conditions of the dispute or lawsuit. Binding verdicts are court-enforced, while non-binding arbitration verdicts must be accepted by all parties to be sustained. An arbitrator may or may not provide reasoning for an arbitration decision.

Some benefits of choosing arbitration for a legal issue include:

Faster process
Definitive outcome (a decision will be reached one way or another)
An arbitrator is usually a trained expert on law or the specific subject involved in the arbitration.

In fact, in cases where the subject is complicated, arbitrators may be required to have experience in the field (e.g., accounting, engineering, construction, patents). This is why some arbitrators perform their job in conjunction with another career.

DIFFERENCE BETWEEN MEDIATION AND ARBITRATION

Things you should know about meditation and arbitration

CHAMAN LAW FIRM

5/10/20241 min read

DIFFERENCE BETWEEN MEDIATION AND ARBITRATION

Mediation and arbitration are both forms of alternative dispute resolution (ADR), meaning alternatives to the expensive and time-consuming litigation of a lengthy court battle. Mediation and arbitration are similar in that they bring together parties in conflict to resolve an issue outside of the courtroom, but each has its own unique way of doing so.

Arbitration is private process where parties work with a neutral third party to hear both sides and make a final and binding decision, using agreed-upon rules governing how the process will work. Mediation is a negotiation facilitated by a neutral third party. The mediator does not impose a decision, but helps the parties come to an amicable resolution.

A mediator helps parties negotiate a settlement that will satisfy all the parties. A mediator does not decide a dispute but an arbitrator functions more like a judge, deciding the outcome of a dispute based on evidence and law presented in an arbitration.

Arbitration is binding, and the outcome can be enforced like a court order. Parties must agree to arbitrate and must sign an arbitration agreement online a mediation which is not binding.

Mediation is useful to help the parties find common ground, while arbitration is used as an alternative to litigation when the parties cannot resolve their dispute and need a third-party to impose a decision.

Arbitration is most commonly used in the resolution of commercial disputes and is distinct from mediation which is common in the settlement of labour disputes between management and labour unions.

Mediation is a non-binding process generally conducted with a single mediator who does not judge the case but facilitates discussion and eventual resolution of the dispute.

Arbitration on the other hand is typically a binding process that replaces the full trial process with multiple (often three) chosen people to serve as judges in your case

In mediation, the parties are brought together in an environment where they can freely and confidentially present their position in front of a neutral third party. The neutrality and more relaxed atmosphere of mediation may eliminate the desire to continue hostile litigation once both parties have seen all the issues in a fair light.