Civil disputes: arbitration versus mediation

Civil disputes are a fact of life but the traditional route of litigation is generally worth avoiding whenever possible. There are two principal forms of alternative dispute resolution, mediation and arbitration, and when successful they remove the need for costly, time-consuming and emotionally charged time in court.

Government and the courts actively encourage mediation, which involves a neutral third party acting as a mediator between the two sides, who are brought together in an informal environment to share their grievances confidentially. Acting as a go-between, a mediator can help the parties in dispute to crystallise the heart of the issue, which may have been ongoing for years, and often been lost sight of.

Mediators should not provide legal advice or pass judgement on the facts involved being merely the facilitator of the dispute resolution. The process is not legally binding and only becomes so when both parties put the agreement in writing and sign it in order to create a contract.

Mediation is usually a relatively quick process rarely taking more than a day and the mediator’s costs are split between the two parties.

Arbitration is an altogether more formal process involving the appointment of an arbitrator either by agreement or from a panel. The arbitrator’s role is more akin to that of a judge with decisions made on the evidence presented by both sides from which they decide the outcome of the case. The arbitrator’s award is enforceable in a court of law.

The costs of arbitration can be higher than those of mediation and proceedings can take much longer. However both have a role to play in the resolution of disputes outside of the courts.

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Mike Townsend FRICS MCIArb TEP

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