You’re trying to resolve a dispute. How do you know whether to use a mediator or an arbitrator?

Mediation is a thing that you can’t get without a mediator. Arbitration is the stupidest invention ever to hit the legal field; why pay for a service that’s provided for free by the federal taxpayer?

Mediation is an effective alternative dispute resolution method that emphasizes cooperation and mutual understanding. Its voluntary and confidential nature encourages open communication, allowing parties to freely express their concerns and interests without fear of repercussions. The mediator's neutral role ensures that the process remains balanced and focused on finding a solution that satisfies all involved. By fostering dialogue and exploring various options, mediation often leads to creative and tailored solutions that a court might not offer, helping to preserve and even strengthen relationships.

Na minha experiência entendo que depende muito de cada caso. Em quest?es complexas, pode ser útil come?ar com media??o para explorar op??es e construir consenso, e depois recorrer à arbitragem se as partes n?o conseguirem chegar a um acordo. A chave é escolher a abordagem que melhor se adapta à cultura e às necessidades específicas da empresa.

The advantage of arbitration over mediation is that arbitration is a binding process, and the arbitrator, unlike a mediator, is not constrained by the need to guide the parties to an agreement. Ultimately, the arbitrator issues a decision at the end of the process, and the success of arbitration is not contingent on reaching a mutual agreement, as it is in mediation.

Choosing the role will be taken to mediate a conflict, whether a mediator, arbitrator or a conciliator, it is necessary to look at the triggers within an internal department, company, intercompanies, against community leaders, or government as well as with parties from different countries and international parties. Then, is there any material impact follows or just a social problem? and so on. From this, it will be possible to determine what role we can take to help resolve the conflict. Is it enough as a mediator? or need to invite parties who are entitled and worthy (certified) to become arbitrators to decide what is best. The conciliator, is who actively approaches each party in the dispute hoping problems resolved amicably.

Assim como em projetos complexos, onde é necessário tomar decis?es difíceis, a arbitragem demanda uma avalia??o imparcial e fundamentada. Minha experiência em lidar com diversas situa??es ao redor do mundo me ensinou a importancia de ouvir todas as partes envolvidas antes de chegar a uma conclus?o. Como árbitro, minha prioridade seria garantir que todas as vozes sejam ouvidas e que a decis?o final seja justa e equitativa.

The outcome of mediation is a new contract or agreement that does not have binding enforcement characteristics. This new agreement can itself become a source of new disputes if the obligations arising from the mediation agreement are not fulfilled.

Nicht jedes Verfahren eignet sich für jedes Problem. Bei sehr emotional verworrenen F?llen kann eine Mediation sicherlich mehr bewirken, als wenn es um klare rechtliche Problemstellungen geht. Man muss sich auch eingestehen k?nnen, sollte eine Mediation fehlschlagen, denn an etwas aussichtslosem muss man nicht festhalten.

Arbitration is an effective method for resolving disputes between merchants and professional users. If the parties enter into arbitration with precise information, it can be beneficial; otherwise, it can be like the Sword of Damocles.

Parties include arbitration agreements in their contracts because they wish to confidentially and efficiently resolve disputes that may arise out of that relationship. Aside from confidentiality, benefits of arbitration include 1) limited discovery, 2) flexibility and 3) greater ability to enforce their arbitral awards (especially if the dispute is an international one). The parties' autonomy is the most key benefit. Parties can tailor the process for their mutual benefit. They may select the forum, tribunal, language and procedure governing the arbitration. And the parties’ ability to choose the composition of their tribunal ensures that the dispute will be heard by individuals that the parties trust and consider competent.

As a thumb rule, it is to be remembered that :- Mediation is a collaborative dispute resolution process and a solution will emerge only when the parties agree to it. In Arbitration the parties lose their decision making authority which is submitted to the arbitrator, who examines the documents, evidences and witnesses if required. Therefore, in my view Mediation should always be the first choice and in case of failure, the parties may resort to Arbitration. The dispute resolution clauses should be flexible in contracts and Med- Arb- Med should be the ideal format for an effective & efficient solution.

Each dispute is different and the dispute resolution process should reflect the nature of the dispute, the parties willingness to discuss/find compromises and to address the real sources of the dispute. Mediation these days also offers a final and binding decision as does Arbitration, specially in International Commercial Disputes, thanks to the Singapore Convention.

Mediation and arbitration are not the parties' only choices for dispute and conflict management. Conciliation, negotiation , standing dispute settlement bodies, and even traditional court litigation can be valuable fora to resolve disputes and keep a relationship on track (or, at the very least, bring clear closure to a relationship that is no longer viable).

I write about this in my book (“Straight Law Talk THE BOOK”) pp. 63-66. However, I’ll say if it looks like the parties can reach common ground, consider mediation early on. If your dispute needs attention from someone in a specialized area, let’s say employment law, then an arbitration might be in order. Arbitrations, however, are next to impossible to successfully appeal so don’t agree to them without careful thought. Mediation is a collaborative process, almost no one dislikes mediation, which is why it’s such a popular dispute resolution tool.

Assim como sugeri a respeito da media??o, considero que uma ferramenta muito potente para utiliza??o em ambos as situa??es é a Comunica??o N?o Violenta (CNV). Essa ferramenta se arrisca a utilizar a palavra "compaix?o" para apresentar nossa natureza humana mais basilar e relacional, nos ajudando a ligarmos uns aos outros e a nós mesmos, possibilitando um possível "guia" em maior profundidade em nossas rela??es, sejam elas em quaisquer locais ou hierarquias.