Mediation and Arbitration
Mediation and arbitration constitute some of the most common third party procedures used to settle disputes. In the mediation process, a neutral third party plays the role of facilitating the negotiation process. In this case, the mediator promotes communication, consensus and other aspects that are crucial in dispute resolution. The mediator’s role does not entail making a final decision regarding a dispute. Disputants make the final decision during mediation process and attain voluntary settlement. Mediation allows the parties involved in a dispute to discuss and reach an agreement concerning various issues employing professional help. In this regard, such parties can preserve or mend relationships that may have suffered damage during the period of the dispute. Mediation gives the parties significant levels of control concerning the outcome to a dispute. The arbitration process uses a neutral third party to conduct adjudicative roles similar to those of a court. The third party represents a solution after a comprehensive evaluation of the arguments and evidence presented by the disputants (Liebmann, 2000). The arbitrator’s decision provides a binding agreement between the disputants. In this regard, the disputants’ level of control concerning the case is minimal.
Combining meditation and arbitration so that the two processes work in tandem allows the concerned parties to derive various benefits associated with both processes. In addition, this strategy helps to eliminate most of the disadvantages associated with two distinct methods. The use of mediation and arbitration in conjunction with one another creates a hybrid method for dispute resolution known as MED-ARB. While mediation minimizes the costs of settling disputes and gives disputants significant levels of control over a case, arbitration promotes the eventual realization of dispute settlement (James et al., 1993). Combining the two processes allows the dispute settlement process to integrate the benefits derived from the mediation process. In addition, this combination helps disputants to tackle the disadvantages associated with mediation by employing the benefits derived from the arbitration process. For example, since the mediation process does not guarantee a solution to a dispute process, including the arbitration process will ensure a dispute settlement process that provides a solution. Furthermore, such an approach will address the disputants’ control over a settlement process. Thus, the hybrid approach will provide better results compared with the use of one of the two distinct processes. Combining mediation and arbitration creates synergy in the MED-ARB process since blending of the two processes ensures that if mediation fails and there is no voluntary settlement, the disputants embark on an arbitration process and reach a binding settlement.
The MED-ARB approach assumes that the mediator possesses the necessary qualifications concerning legal and technical norms and matters relating to industrial practice. In this regards, the mediator can perform roles of an arbitrator with ease. The MED-ARB approach creates efficiency concerning the settlement of disputes since an unsuccessful mediation process does not require the parties to seek the intervention of a different neutral third party whose unfamiliarity with the dispute may cause delays as the case shifts to the arbitration phase (McLean & Wilson, 2008). For example, when the meditation process proved unproductive concerning a dispute relating to a breach of contract between two companies, both parties agreed on the relevancy of the mediator to continue in the arbitration process. Since they wanted a quick solution for the dispute, the MED-ARB strategy seemed as the best approach in the case.
A comprehensive evaluation of most of the issues concerning a dispute occurs during the meditation phase. The arbitrator’s scope of operation ensures an appropriate binding settlement. The flexibility associated with the MED-ARB process allows mediators or arbitrators to model most of the disputes to fit its scope. In this regard, the blend between mediation and arbitration allows consideration for specific circumstances and thus serves the interest of the parties involved in a certain case. The MED-ARB approach creates certainty concerning the attainment of the solution because, with the failure of the mediation process, a smooth transition from meditation to arbitration exists (Weisman, 2011). The similarity between the evaluative roles of a mediator and those of an arbitrator facilitates an easier shift of roles. MED-ARB helps to minimize the costs associated with legal actions and provides a certain level of flexibility concerning the pursuance of consensual settlement before or during arbitration.
Although mediation and arbitration are two distinct processes, they possess some form of similarity, such as in the case of evaluative mediation, whereby the negotiation process largely focuses on the legal and evaluative aspect of a dispute. This technique of dispute resolution gives the parties in question an opportunity to reach an agreement with the intervention of a mediator. In the case that the mediation process does not bear fruits and some issues remain unresolved, the disputants embark on an arbitration process. The MED-ARB approach allows either the mediator or arbitrator to preside over the settlement to a dispute. If the mediator possesses relevant qualifications, he or she can assume the role of the arbitrator. On the other hand, the arbitrator can perform the duties of mediator after consultations with the mediator. While mediation and arbitration phases employ different neutrals, the MED-ARB approach uses the same neutral third party that plays the role of both a mediator and an arbitrator. MED-ARB provides the disputants with a dispute-resolution approach that is fair, consistent and transparent. In addition, this process provides the disputants with an opportunity to present their opinions concerning a certain case.