Mediation v Arbitration

Differences between Arbitration and Mediation

Arbitration and Mediation are the two main forms of Alternative Dispute Resolution (ADR).

There is no ‘one size fits all’ form of ADR. Every case is different. Every party has different needs and objectives. Below we’ve set out some key information which may help you decide which form of ADR is right for you, but our friendly team are available on a no-obligation basis to chat through your options and help you decide – take the first step by filling in our online enquiry form.

Arbitration

Arbitration is essentially a ‘private court’ which means that someone independent (the Arbitrator) is appointed and that person makes a decision about all or part of your dispute. The arbitrator takes the same role that a judge would take at court.

You might choose arbitration instead of mediation in the following circumstances:

1.            When the parties know that they will not be able to reach an agreement, even with assistance;

2.            When the timescales are such that there is not time for negotiations to try to reach an agreement;

3.            When the parties wish to be able to fix and limit fees by limiting the amount of meetings they have with the arbitrator.

Arbitration is a well-established procedure. The arbitrators making the decisions are experts in their field and in administering fair justice. Arbitrators are professionals who have undertaken additional training and are accredited and regulated by professional bodies relevant to their specialist area.

The main benefits of arbitration are:

1.            Practical convenience

Arbitration is more relaxed than going to court. The arbitration itself can take place at a venue and time to suit you and the other party. That could be outside of court hours and in a far more comfortable setting. Most arbitrations involving small claims (under circa £200,000) follow a documents-only procedure, which means there is no formal meeting or hearing.

You can also choose your own arbitrator who will be a specialist in the subject of your dispute. If you and the other party cannot agree on an arbitrator you can jointly agree to nominate a third party appoint one for you.

2.            Cost

You can typically fix the cost for your arbitration in advance.

Costs are structured so that you can choose to instruct the arbitrator to determine one distinct issue or ask the arbitrator to determine all of the issues in your case.

There is no possibility of further meetings with the arbitrator being needed; the arbitration is listed to be heard on a given day and a decision will be made.

With mediation there is the possibility of further meetings with the mediator being required (with a further fee), the aim being that each party shifts their position between each mediation until an agreement is reached.

3.            Streamlined process

Arbitration is not like court proceedings in which you fill out lengthy application forms, send them to the court and wait for a date for your hearing, and then wait months between each court hearing for your case to be decided.

Arbitration is also not like mediation where the aim is to get you and the other party to reach an agreement which could take an unknown amount of meetings with the mediator.

Arbitration is a simple process where you tell the arbitrator which issues you want determined, provide the arbitrator with the evidence (orally or on paper), and then await the determination which will be with you within seven days.

4.            Delay

One of the main benefits of arbitration is that delay is minimised. An arbitration can usually be listed within two weeks and a decision will follow within seven days. Your case will be the only one which the arbitrator deals with on that date and so there is no chance of it being adjourned because the arbitrator has run out of time or needs to deal with another matter.

Arbitration is a swift, cost-effective alternative to court and has the advantage of providing a final determination of your dispute.

Mediation

Mediation is a confidential and flexible process in which an independent person (the Mediator) facilitates negotiations between the parties to help them achieve a voluntary settlement of their dispute on terms which they agree.

Unlike arbitration no binding decisions are made unless the parties reach agreement on the proposed settlement. This means that the option of reverting to the Court for a determination by a Judge remains open if either party is unhappy with the settlement proposals and means that no outcome is ‘forced’ on either party.

The Mediator will be accredited and experienced who will be able to focus discussions and break down barriers to settlement. Typically, the success rate of mediations is around 80%, meaning there is a very good chance that the dispute can be resolved on the day.

The Mediator will speak confidentially with each party in separate rooms about the strengths and weaknesses of their case and their opponent’s case. The Mediator will help the parties formulate and analyse settlement proposals with a view to helping the parties find a suitable settlement point.

Some of the key benefits of our mediation service:

1.            Convenience.

•              Our service is available to parties before or during court proceedings.

•              It can be arranged at a time and date of the parties choosing rather than the one prescribed by the court listing officer.

•              The parties can choose a venue which suits their needs. Our mediation suite is included in the fixed price for our mediation service and is often preferred by parties as ‘neutral’ ground.

•              The parties can choose a mediator based on their knowledge and experience.

•              It can be accessed whether or not you have legal representation.

•              You can mediate the whole dispute or particular issues.

•              Our Mediators are flexible in their approach and will adapt the mediation process according to the needs of the parties.

•              Mediations can result in solutions, which Judges can’t order.

•              Mediations can help parties resolve their differences and improve future relationships in contrast to the court process which often further entrenches the parties’ differences.

2.            Cost

•              Significant costs savings can be achieved by mediating a dispute compared to the costs associated with taking a case to court.

•              A clear fee structure is quoted in advance so you know how much the process will cost.

•              The Courts now strongly encourage parties to seek to resolve their dispute using alternative forms of dispute resolution (known as ADR). Mediation is one of the main forms of ADR and a failure a party to constructively engage in mediation can result in the Court making a costs order against that party.

3.            Streamlined Process

•              Mediations can be arranged at short notice.

•              Unlike a court hearing which can last many days, most mediations only take 1 day.

•              There is no need to give evidence or be cross-examined.

•              If a settlement agreement is achieved it will be written down and signed by the parties there and then.

4.            Avoids Delay

•              Rather than wait for a court listing date, which can often be many months later, a mediation can be arranged at short notice.

•              Increasingly trials are being adjourned at very short notice which builds in further delay and frustration into the court process.

•              Mediations can be arranged at any point during your dispute, whether at the very start or after positions have become entrenched.

•              Even after a trial has finished there can be delays in obtaining a Judgement which might then be subject to a lengthy appeal process. In contrast a successful mediation can achieve immediate solutions which can’t be appealed.

We offer mediation services in the following areas of law:

•              Civil and commercial disputes – including disputes concerning businesses, consumers, contracts, debts, property, landlords and tenants, land and real estate, neighbours, boundaries, wills and inheritance, trusts, personal injuries and employment.

•              Family disputes – including financial arrangements following divorce and child contact

Read more on our mediation pages.

Connect with Our Skilled Dispute Resolution Experts

If you have any queries about our arbitration or mediation services or think it could be useful in your case please contact our Admin Team on the email below or submit an Enquiry Form.

admin@disputeresolutionservices.org