Alternative Dispute Resolution: Mediation & Arbitration
Most people are aware of the option to take their dispute to court. However, what people may not realize is that this is usually one of the more time-consuming and costly of options to resolving a dispute.
There are alternative choices, and these are known as Alternative Dispute Resolutions (ADR).
These alternatives can allow both parties the opportunity to express their needs in a low conflict setting, while a neutral party can ensure that each side has the chance to have their relevant interests taken into consideration regarding the final decision.
As a result, ADR processes can sometimes be more time and money efficient, and allow for greater creativity and flexibility in the decision making process, than is typically available with a court imposed decision.
It is important to note:
That these more informal options can never be forced upon you as a substitute for a court case (mandatory mediation may have to occur prior to court). Ultimately both parties involved in the disagreement must freely choose to use one of these alternatives as their preferred method for resolving the dispute.
Additionally, it is not recommended that you use ADR options if you are involved in a dispute with a violent person or partner, someone who has more power than you (e.g. your boss), or if you are feeling bullied.
There are generally three kinds of ADR available to you.
Each of these options is it’s own process, but they can also be used together (such as the combination of mediation and arbitration, often called med-arb). It might be helpful to understand them as being on a continuum.
Negotiation – People voluntarily discuss their disagreement and work out conditions and decisions amongst themselves. Usually just the parties involved in the disagreement participate. But you can also use a counsellor, lawyer, or advocate to aid you in this negotiation process.
Mediation – Participation in mediation can either be voluntary or involuntary. As some courts may order you to participate in the mediation process prior to trial. Mediation is a lot like negotiation, but in this case there is a third party (the mediator) who is unbiased and impartial to the dispute. The mediator is not there to sort out who is right and who is wrong and then pass a judgement. Rather, a good mediator, will help the two disagreeing parties to better communicate, understand, and negotiate their differences of opinion.
If during the mediation process you do find a suitable solution, do not sign an agreement just yet – not without first showing the agreement to your lawyer. It is very important to understand as well that ultimately a mediator cannot force you to settle or accept a solution that does not work for you, and you can walk away at any time. Which brings us to our next option, arbitration.
Arbitration – If you are not able to resolve your conflict with the above noted methods, you may want to try arbitration. An arbitrator is usually someone who specializes in a specific area of law. The parties involved can choose the arbitrator of their choice and usually this is someone with expertise and experience in their particular area of need. The final decision of the arbitrator is known as the reward. Usually (there are some exceptions) the arbitrators decision is final and binding and the rewards are enforceable in court. It is important to know that if one side of the party hides any financial information from the arbitrator, the court can set the family arbitration agreement aside.
Litigation/Court – Going to court can be initiated by either party. A judge acts as the decision maker, and the parties usually have representatives who speak for them. The decision is final, however subject to appeal.
In summary, mediation and arbitration can be both faster and less costly than traditional litigation and may be the best way to protect the interests of everyone involved.
Hopefully this quick overview of alternative dispute resolutions has given you a better idea of which method might be the best fit for your legal concerns. Whichever method you do choose, remember it is always a good idea to obtain legal advice from a lawyer before signing or agreeing to any decisions regarding your personal dispute.
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