You’re not alone if you think mediation is just a variation of litigation, just as arbitration. Most people, even some attorneys, don’t know what the distinction is between mediation and arbitration.
But in actual fact they are like chalk and cheese; and in the following paragraphs are a few pointers to give you a clear idea of the vast differences between these two forms of alternative dispute resolution.
Arbitration is sometimes described as private litigation. It’s quicker than going to court and less formal but not necessarily less expensive, nor necessarily better.
Mediation, on the other hand, is a process of communication in which parties to a dispute are assisted by a mediator in order to seek solutions, and to reach an agreement, understanding, or reconciliation acceptable to both of them.
Mediators are facilitators, which mean they assist the disputants to make their own decisions in reaching a resolution to their conflict. The process is private, confidential and without prejudice. Only when an agreement is reached and signed are the parties bound by it.
A mediator is neutral and impartial to the parties and the outcome of their negotiations. Mediators are ethically bound not to impose an outcome or decision on the parties. Accredited mediators are skilled in techniques to assist the parties in this negotiation process.
Arbitration, however, involves decision making by an adjudicator, a person who hears both sides and makes a decision about the disposition or resolution of the dispute. Disputants may or may not be bound by that decision.
The arbitrator is a decision-maker; the mediator is not. An arbitrator judges, while a mediator guides and facilitates. An arbitrator determines who wins and who loses. A mediator assists the parties to find solutions where both are satisfied that the outcome is fair.
In arbitration the arbitrator looks back, at the history of the dispute to see who is right and who is wrong. In mediation the parties look forward, for a solution in order to move beyond the disputes and issues.
In mediation the parties to the dispute decide the outcome. They are in control of the process and only when the outcomes suits both, do they agree to settle.
In arbitration the arbitrator decides and when one or both of the parties are unhappy with his ruling, they have very limited recourse to review. In litigation the judge decides and while his/her judgement is often more credible and more easily accepted by the parties, the process is long and expensive.
Mediation creates a platform enabling a lasting, mutually satisfactory solution whereas arbitration and litigation do not.
If you want to get in touch with us to act in respect of any matter stated herein, please send an email to info@chrisfick.co.za
Source Reference:
Chris Fick (chris@chrisfick.co.za) (www.aim-mediation.co.za)
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