How do you choose an arbitrator or a mediator for a contract dispute resolution?

In my experience it is important to select a mediator with deep subject matter expertise in addition to mediation skills. This type of mediator will need less educating during the process about the subject matter and will be able to better understand the positions of the involved parties.

What is arbitration ? 1. Arbitration is a contract dispute resolution carried out by independent and impartial third party, the arbitrator or panel of arbitrators. 2. Under the New York Convention 1958, arbitration settling the commercial disputes, and its decision is legally binding and enforceable. 3. Arbitration is set up under an arbitration agreement of the contracting parties. There is no arbitration without arbitration agreement. 4. The dispute resolution by arbitration is done within 6 months since the setup of the arbitration tribunal. 5. There is no appeal for the arbitration decision, the award is final and binding. However, under limited ground the award could be challenged for its cancellation.

An example would be a case where a musician and a record label are in a dispute over the terms of their contract, specifically the royalty payment structure. Instead of taking the matter to court, which can be costly and time-consuming, both parties may agree to engage in arbitration. In a process like this, they would appoint a neutral third party, the arbitrator, who is well-versed in entertainment law and has experience handling similar disputes. The arbitrator would then hear the arguments and examine the evidence presented by both the musician and the record label.

Sometimes, mediation and arbitration are used as a two-tier dispute resolution process. Parties start with mediation and if there is no agreement, proceed to arbitration. In either case, parties are free to choose who will resolve their dispute which is not the case in litigation.

Mediation provides for wholistic approach to dispute resolution as the parties being direct participants address the emotional and rationale state of the personalities. Arbitration on the other hand is still adjudication by a arbitrator leaving options of appeal with a possibility of lengthy time consuming process

In mediation, the parties agree to choose a mediator, who leads the negotiations between the parties and encourages the parties to come to an agreement and resolve the dispute together, so that the parties make a decision, not the mediator. While in arbitration, the parties choose the arbitrator, and the decision to settle the dispute is made by the arbitrator, and the parties are obliged to respect the arbitrator's decision. That is why, in my opinion, it is better for the decision to be in the "hands" of the parties to the dispute, instead of the decision being made and imposed by a third party. But certainly if mediation is not possible, it is better to settle the dispute through arbitration than litigation.

If the contracting parties would like to settle their disputes by themselves, then they mau choose mediation. The mediator will navigate the mediation fairly, impartially, and independently. He will propose some alternative suitable solutions to discuss by the disputing parties. The final solution acceptable to both sides is decided by the parties. However, if the contracting parties would prefere their disputes to be resolved by the third parties then they may choose arbitration. The arbitrators will navigate a fair solution to the disputes. The arbitrator will handle the disputes legally, impartially, and independently. Their decision is final and binding. The disputing parties, legally, must comply to the decision.

In my experience, the single most important task in assuring a fair and impartial arbitration hearing is to carefully and thoroughly investigate all potential arbitrators, including reviewing all of their prior arbitration awards, their business or legal background and specialty (plaintiffs or defense practice), and even their political leanings.

If you and the other party agree to choose mediation as the contract dispute resolution, both of you must appoint a mediator to mediate your contract dispute. A certified mediator is impartial and independent. He will navigate both parties to seek a solution beneficial to both of them. You and the other party the ones that come to an agreement via navigation by the mediator. If you and the other party agree to choose arbitration as the contract dispute resolution, both of you have to make an arbitration agreement under which choosing an arbitration institution, rules of arbitration, and a panel of arbitrators from the institution to settle the dispute. Arbitrators are independent and impartial, and their decision is final and binding.

One thing I’ve think is helpful is create an arbitration clause identifying restrict skills to define the arbitrator. Arbitrator must be an experts in the matter we decide for arbitration.

According to my practical experience so far, BATNA has its advantages in negotiation: clarity and trust, pressure reduction, flexible strategy... But it brings with it some challenges, if not evaluated correctly, a strong perception of BATNA can lead to overconfidence. Overestimating or underestimating your BATNA can lead to bad decisions. Negotiation situations change, and what may be your BATNA at one point may not remain the same throughout the negotiation process, leading to potentially escalating conflict For effective negotiation, it is necessary to understand the concept of BATNA and evaluate it critically.

In preparing for mediation or arbitration, you start by reviewing the disputed contract (the underlying contract) and identifying, mastering the subject of dispute, and knowing the interests in dispute. Next step you collect the required documents, evidence, witnesses, expert’s opinion to support your position. Further, communicate to the other party and the arbitrator or mediator before the process begins to agree on rules, procedures, and laws as the case may be. During the process be ready to compromise and think positively, pay attention to the other party’s perspective and arguments, consider the interests of both sides, maintain the relationship, and comply to the rules and procedures, deadlines, commitments, and obligations.