Mediation vs. Arbitration

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Mediation vs. Arbitration by Mind Map: Mediation vs. Arbitration

1. Mediator Qualifications

1.1. Alertness is one key quality of a mediator. A mediator must be alert on several levels when listening to both parties. The mediator must be able to concentrate on all of the information that is being provided, and be able to evaluate everything as it comes. A mediator must also be able to watch a person and their body language, their moods, and their cooperation levels. A mediator needs to know when it is time to a take a break, and when to press a party harder. Alertness is one of the many qualities that is a must when mediating (Imperati, 2016).

1.2. Mediators must have patience. A mediator will be sitting with two individuals that disagree on a situation, and there could be a lot of evidence presented as well as a lot of attitude. A mediator must be able to keep the communication flowing in the dispute without losing their patience or temper. If a mediator is not patient or understanding, it could result in the mediator losing the effectiveness of the mediation (Imperati, 2016).

1.3. Appearance is also another important quality. A mediator must come in to the mediation looking professional and trustworthy. If a mediator comes in looking unprofessional, he could lose all respect of the parties and the mediation could fall apart quickly (Imperati, 2016).

1.4. A mediator must be able to adapt to each personality in the room. They must be able to adapt to various locations and environments as well. When a mediator is able to adapt, he can better communicate with the parties in question (Imperati, 2016).

1.5. Self-control is a key quality of a mediator. A mediator must be able to hide his frustration, sympathy, irritation, and etcetera. A mediator must not become emotionally involved with any party, and must keep a third-party perspective. Is the mediator has no self-control, the mediation could fall apart quickly (Imperati, 2016).

2. Arbitrator Qualifications

2.1. To become an arbitrator, you need to have an extensive amount of experience. An individual need to have at least ten years of professional experience, legal practice, or senior level business. There needs to be an educational degree obtained by the individual, or a professional license in the field (Laws, 2018).

2.2. An arbitrator needs to have an immaculate reputation. They need to be held in the highest regard when it comes to good judgement and integrity. Any negative comments will make an individual disqualified from being able to become an arbitrator and to be admitted into the AAA National Roster of Arbitrators (ADR, 2018).

2.3. Arbitrators need to be neutral. They need to be completely free of any bias and any prejudice. During an arbitration, and arbitrator needs to be able to see both sides clearly without making any judgments against any party. In order for an arbitrator to decide the result of the arbitration, there must not be any bias or prejudice (ADR, 2018).

2.4. An arbitrator needs to remain current with all principles and practices that are applicable to their field of practice. They must stay up to date on all of the rules of their profession, and continue to follow all guidelines. If any of these are violated, an arbitrator will no longer be able to arbitrate (National Academy of Arbitrators, n.d.).

2.5. An arbitrator must be ready to rule for one party only by the end of the arbitration. An arbitrator must not agree to a compromise in order to get acceptance from the group. The arbitrator needs to be able to look at all the evidence, and decide the result based on the evidence alone (National Academy of Arbitrators, n.d.).

3. Mediation is the process in which one person from each party comes together to settle their differences with the help of a third person, the mediator (Thomson Reuters, 2018).

3.1. Mediation Advantages

3.1.1. Mediation is much faster then going to court. It could take years for a case to get an official trial date, and mediation can take a few hours or a few weeks (ABA, 2018).

3.1.2. Mediation has the advantage of privacy. Many court cases are of public record, giving access to anybody to view the details. Mediation, on the other hand, is mostly confidential (ABA, 2018).

3.1.3. Mediation is much cheaper then going to court. That money spent going to trial can be used to within the business. Mediation is available for companies at a much lower cost then going to court (ABA, 2018).

3.2. Mediation Disadvantages

3.2.1. The result of mediation is not legally binding because it is not drawn up by a lawyer, and in order for that to occur a lawyer will need to be hired. Having to hire a lawyer for this purpose defeats the purpose of a mediation (Graham, 2013).

3.2.2. With a mediation, there is no promise that a solution will be found. If a solution is not found during a mediation, then the money for the mediation was wasted as well as the money that will be used to continue the process and take the next step (Graham, 2013).

3.2.3. During mediation, either party can withdraw from the process at any time. Ultimatley, this means that if one party is not happy with where the mediation is headed, they can withdraw without penalty (Nolo, 2017).

4. Arbitration is the process in which disputing parties come together to settle their differences, and an arbitrator makes the final decision on the dispute (ABA, 2018).

4.1. Arbitration Advantages

4.1.1. An arbitrator is chosen between both parties. Ultimately, this means that the arbitrator will be someone that each party agrees with and has faith in (Allen, 2009).

4.1.2. Arbitration is less expensive then going to court. An arbitrator fee needs to be paid, and the cost for preparing for the arbitration is also less expensive then going to court (Allen, 2009).

4.1.3. Arbitration, like mediation, is private. If the two sides of the arbitration want the information confidential, then that can be arranged without any issues arising (Allen, 2009).

4.2. Arbitration Disadvantages

4.2.1. If the arbitration is binding, that means that both sides are not able to appeal the decision. Their appeal is right is taken away, leaving the final decision just that, the final (Allen, 2009).

4.2.2. Evidence that would be ruled out by a judge, may be used by the arbitrator. So, an arbitrators final decision could be based off evidence that would not have been used in court (Allen, 2009).

4.2.3. If documents are used from a witness, there is no opportunity for cross-examination of that witness and their testimony. So whether the actual witness statement is true or false, there is no ability to question that witness first hand (Allen, 2009).