ARBITRATION OR MEDIATION

ARBITRATION OR MEDIATION

Written by Graham Perry

10 January 2021

Graham Perry;

When you consider Dispute Resolution, there are two main options; Arbitration or Mediation. Both are excellent – really top-notch. Tested, Track Record, Good Outcomes

Not always guaranteed – sometimes a mediation fails or an arbitration increases acrimony. It happens – more later.

Horses for Courses

This is a horse racing term to describe horses that do well on one racecourse and poorly on another. Arbitration and Mediation can work well provided you make the correct choice.

Don’t’ go for arbitration when mediation is clearly the better option. And in reverse – don’t go for mediation when arbitration is clearly the better option.

Which Horse for Which Course?

First, any choice depends on the parties – if they are deep-seated implacable opponents they will want to see blood on the carpet. The idea of getting them around a table to discuss and resolve their differences is unlikely. But it is not impossible in the hands of the right mediator.

The Mediator

Mediators matter big time – their character, their personality, their style of presentation and intervention. Consider a situation where the two parties cannot contemplate being in the same room as each other and want nothing more than to plunge their respective knives into their opponent’s stomach and keep turning it. A skilful mediator can, by listening and responding, gain the confidence of the parties to the point of considering solutions. Family confrontations do end in family resolutions. It can happen in a mediation – but you do need to be a sensitive, alert, instinctive, sympathetic individual, as mediator, to create the right atmosphere.

The Artichoke

Now this will often require the mediator to meet separately with each party/parties even on different days in different locations. Mediation is a process – imagine you are holding an artichoke and you are peeling off the leaves, one at a time, always getting closer to the heart of the vegetable. Keep that image in your mind, for that is how the mediator will work – step by step, talking, more talking, making lists and more lists gaining the confidence of the parties and moving them from being assailants to being signatories to an agreement.

Sometimes this cannot be achieved or it can be achieved but the mediator lacks the necessary qualities to bring it about. Mediators are trained. They are challenged and examined. Their skills are reviewed in exams and in role-play and interviews under pressure.

Skills can be taught. There are training manuals but the test is how you perform.

The Soccer Referee

Consider the analogy of the soccer referee. He/She learns the rules of the game – their knowledge is tested in a written exam but do they possess the instinct – do they understand the passions that the game generates? Are they able to control the conflicts and handle disputes without the use of yellow/red cards? Again a test of personality and character and decision making. React the wrong way as a referee and you have lost the players. React in the wrong way as a mediator and you have lost the parties.

Summary

Read up about arbitration and mediation. Understand the differences. Understand the role of the mediator. Consider the qualities of the mediator.

2 Comments

  1. Halton

    Amazing Post thanks for the information.

    Reply
    • Graham Perry

      This is fine – I will make changes and send over to you

      Reply

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