The rise of mediation and arbitration
Over the past several decades, Alternate Dispute Resolution (ADR) has become a major component to our litigation process and the means by which an increasing number of disputes get resolved. This trend undoubtedly reflects and results from the steadily increasing costs, risks and delays associated with traditional litigation. The two most common ADR mechanisms are mediation and arbitration, with a fusion of the two commonly referred to as med/arb.
Disputes between parties are draining financially and otherwise and typically trigger serious considerations and consequences to the lives and businesses of the parties involved. Selecting the professional who will serve either to facilitate (mediation) or adjudicate (arbitration) and otherwise steer the dispute to a satisfactory conclusion is of critical importance.
Considering mediation or arbitration
Not all disputes require an adjudicated outcome whether through Court determination or arbitration. In both such processes, parties to the dispute relinquish control over an outcome to a judge or arbitrator with significant risk and cost consequences. Furthermore, while arbitration proceedings ought to be more time efficient and cost effective to traditional litigation, increasingly and regrettably, experience over time is demonstrating otherwise.
In mediation and arbitration, respect toward an inclusive process for the parties involved and their councel is essential.
It ensures, to the extent possible, that the process toward resolution is one with which the parties are comfortable, is appropriately efficient and maximizes the prospects for satisfactory resolution – in the case of mediation, a reasonable, principled and workable outcome and in the case of arbitration, a correct decision having regard to the facts, evidence and the law that applies.
In mediations, the parties craft a resolution themselves to their dispute with the effective facilitation and assistance of a mediator. Most disputes require and the parties involved should demand skill, respect and effectiveness from a mediator.
Critical expectations parties should have of their mediator
A mediator should ensure, in the end, that the resolution achieved at a mediation is satisfactory to the parties and has resulted from a process they crafted and with which they are comfortable.
Effective facilitation involves creative and flexible intervention by a mediator, firm guidance without pressure and with respect throughout for the parties, their perspective and party autonomy over process.
Mediations are a voluntary process in which parties to the dispute engage in a good faith effort to reach resolution. Fundamental to the theory and practice of mediation is party autonomy. It mandates that the parties maintain the right throughout to make their own decisions, for reasons they choose, and through a process with which they are comfortable. A mediator cannot and should not supplant those rights or concurrently seek to impose a resolution and a process toward it on the parties. It is left to the mediator to effectively and constructively assist with the negotiation process at a mediation.
Gone are the days when parties chose and did settle for mediators exercising their intuition and clout, without the benefit of any training and without regard for important rights and principles at play in a mediation process. Telling the parties, without more, what a judicial outcome would likely be for their dispute, imposing a process on the parties, being impatient with dialogue and leaving the parties feeling pressured into a resolution and thus dissatisfied with the outcome and process, is not an acceptable approach for mediators to take in their work.