MEDIATION
Mediation is a voluntary process of cooperative problem solving
in which a neutral third party, with special training and
skills, helps individuals to work out mutually acceptable,
agreements. The mediator is selected by agreement between the
parties.
It is important to note that the mediator does not reach the
solution; the parties do, with the mediator's help. Although
conflict is difficult to deal with, and emotions often run high,
you should come to mediation with an honest desire to reach a
settlement that is fair to both and workable in practice.
Participants in mediation must be prepared to be flexible in
moving away from their initial positions to seek solutions which
meet as many of their mutual interests as possible.
Mediation is voluntary, and either party is free to withdraw
from mediation any time during the process. In fact, unless
there is an existing contract between the parties which requires
mediation if a dispute arises, or if required as part of a
mandated court procedure, a party need not participate in
mediation. In some circumstances, the mediator may also end the
process, if he or she believes that mediation is not appropriate
or useful for the parties. Although the process is voluntary,
agreements reached through mediation can be as valid as any
other contract.
ARBITRATION
Arbitration is a process where two or more parties, who have
been unable to negotiate a solution to a problem, agree to put
the matter to an independent neutral person to provide an
answer, and to be bound by that decision. Sound simple? It can
be, and has been known to be used by people in all societies
since the days of the early Greek civilization.
Why? Because merchants involved in commercial disputes, shipping
companies and their customers, insurance companies and the
insured, unions and employers, have all found over the years
that the process works. It provides sensible results without
having to go to court. The popularly of arbitration over the
years (and in fact, centuries) shows that the system works well
and efficiently for those who use it. For example, complaints
under union-management collective agreements are routinely
resolved by arbitration - and it is the rare case that goes to
appeal.
There are similarities between arbitration
proceedings and those of the courtroom.
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The arbitrator hears evidence from witnesses
for the parties.
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Each side is represented by a spokesman or
advocate
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The arbitrator listens to the arguments and
produces a binding award, just as a court gives a judgment.
The differences between litigation / arbitration
are:
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No long written pleadings (through briefs
and written argument can be used and are sometimes very
effective)
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Delays and extra "motions" are
eliminated, or at least kept to a minimum
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The rules of evidence and formality are
relaxed and less constrictive
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