Mediation and Arbitration
COM 325 Communication and Conflict
In the earlier development of the English Language mediation and Arbitration was used interchangeably. According to the Oxford English Dictionary, the historical definition of Arbitration was, “to act as a formal arbitrator or umpire, to mediate in dispute between contending parties.” Today there is still much confusion as to what the difference is between Mediation and Arbitration. If we try to look up the definition online we will most likely find that Arbitration is used in the context of a Mediator and vise versa. The simplest way to explain the two would be to describe the main difference, purpose and role of both Mediation and Arbitration.
Mediation and Arbitration are both forms of Alternative Dispute Resolutions, or ADR’s. Alternative Dispute Resolutions are means used to neutralize a conflict outside of the courtroom. ADR’s are usually less formal, less expensive and less time-consuming than trail disputes.
Under the process of Mediation Parties communicate with a “neutral third party who facilitates communication between the conflicting parties so that they may come to a mutually acceptable agreement.” (Cahn & Abigail, 2014) This third party generates non-binding recommendations that must be agreed upon by both disputants. The communication between the parties usually promotes healthy non-hostile communication efforts where both sides are equally heard. When compared to other ADR’s, Mediation is the less costly. If conducted properly, Mediation will minimize the need for disputants to feel the need to seek out legal remedies.
The role of the mediator is one that is non-emotional; this person must be skilled in the arts of communication and use descriptive speech. The Mediator focuses on behaviors that can be changed and give timely feedback only when requested. The Mediator creates a “safe and constructive environment for disputants to discuss emotional and substantive issues and reach an agreement.” (Cahn & Abigail, 2014) A Mediator is more the facilitator guiding the disputants through conflict towards mutually agreed resolution.
Mediation can be applicable for many different types of disputes; the most common would be family cases. Under the umbrella of family disputes we have anything from Prenuptials, separation, divorce, custody and visitation issues, estates, and end-of-life care. For example, in the case of custody and visitation the parents cannot find common grounds on how to proceed after a separation or divorce when children are involved. They may seek a Mediator to help facilitate the dispute until the two can agree on how and when they are able to set visitation dates and who will have custody over the children/child.
There are few drawbacks in Mediation. In some cases where violence is involved it is believed that mediation may provide another method for the abuser to harm the victim. Depending on the nature of the situation it is possible for the victim to be unable to assert her position. Also there is always the possibility that an agreement may not be reached which will leave disputants going through time-consuming expensive process of trail after attempting to deal with Mediation.
Arbitration has very similar attributes. Arbitration is another ADR. It is the non-judicial process for the settlement of any conflict in which a third party will make the decision that is legally binding. Arbitrators are similar to a judge, though the process can be less formal than that of a courtroom; the Arbitrator is in fact an expert in their own right. Arbitration has many advantages, it is confidential just as mediation is confidential and like mediation it is also less costly. The difference is there are limited to no grounds for which the disputants have control in the resolution. The arbitral awards are a binding contract that cannot be altered and are enforceable by the court system. (BCIBCAC, 2018)
The Arbitrator can be anyone from a retired judge, or senior lawyer. The Arbitrator gives the disputants the opportunity to state their claims and like a court preceding the Arbitrator has the right to question both parties. The disputants will have little to no out-of court negotiations. This is because it is the role of the Arbitrator to create a legally binding decision, which both disputants must honor because it is enforceable by law of the court in one hundred and four-two countries. (BCIBCAC, 2018) According to the American Arbitration Association (AAA), Arbitration is faster and more cost effective than litigation. The American Arbitration Association is a not for profit organization that gives companies the opportunity to settle conflict outside of court at a lower cost than a court preceding. For example, if an organization fires an employee for a positive drug test and later decides to sue the company, it can call for Arbitration. This would mean the case would be reviewed and resolved by the Arbitrator rather then by a judge in a courtroom.
One of the most famous Arbitration cases is the Alabama Claims Arbitration. In September of 1872 there was a diplomatic dispute between Great Britain and the United States, which was caused by the U.S. Civil War. It took years of conflict and finally through the process of Arbitration, the Arbitration commission issued its decision and rejected the U.S. claims for indirect damages but order Great Britain to pay the U.S. millions as a compensation for the Alabama Claims. (Office of The Historian)
When dealing with Commercial disputes there is a code of ethics that Arbitrators must abide by. These codes are to assure that there is no unethical behavior on behalf of the Arbitrator. They must remain Neutral; they must “preserve the integrity and fairness of the arbitral process.” (AAA, 2018)
Arbitration does have its disadvantages just as Mediation has it’s own disadvantages.
Because Arbitration is binding and disputants give up their rights before hand there is always a possibility that the disputants will be left unsatisfied. Then there is the matter of finances. If the issue is complicated where the dispute requires Arbitration but the amount involved is modest, the fee for Arbitration may make the process uneconomical.
Despite these minor drawbacks Arbitration and Mediation is one of the best ways to settle disputes outside of court. For those of us who wish to find reconciliation for either reestablishing relations or just to assure civility. These two methods of Alternative Dispute Resolution are proven to be the most time and cost effective methods available to both individuals and organizations.
Conflict is an evitable part of life. We will always encounter conflict from time to time due to our difference but knowing that there are options out there to assist us in our most difficult disputes should alleviate stress for many.