Definition of Mediation
Mediation can be defined as use of informal and non-documented approach in solving
disputes. Litigation is the process of addressing issues or differences by use of a legal system. It
follows the path of well documented laws as opposed to mediation. Both approaches have their
advantages and disadvantages.
Advantages of Mediation
Mediation has higher level of compliance as opposed to litigations. This is because the outcome
of a mediation is more party generated as opposed to a third party offered solution. In
mediations, the chances of appeals and counter appeals is low.
Mediation is done in private and only involves the concerned parties. This is different
from litigations which are held in public and open courts. This makes mediation a more
confidential way of dispute resolution unlike litigation.
Mediation is time saving and quick. It may take a day to solve a dispute and still have
parties satisfied. Litigation on the other hand takes a lot of time. (Weston &M. (2020)). This is
because of the number of people and institutions involved. It may also experience a lot of
bureaucracy, investigations and injunctions.
Disadvantages of Mediation
The biggest disadvantage of mediation is that it may fail and parties end up in court. This
leads to waste of time and resources. It may also lead to miscarriage of justice in cases where a
party does not understand their rights in law. It is worse when it touches on fundamental rights of
the people. Mediation can be a disadvantage where it leaves open chances for a repeat of the
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same issue of conflict. (Weston &M. (2020)). This is because it may not carry weighty penalties
of the law.
Qualifications of a Mediator
A good mediator should have the following traits:
Neutral and nonpartisan. This will ensure fairness.
Good and patient listeners
Have empathy to both parties
They should be confidential. (Elrod & L. (2020)).
Be honest and respectful
Advantages of Arbitration
Arbitration ensures that the party on the wrong is penalized legally. These penalties ensure that
the party does not repeat the same in future. It also dissuades others from committing such
illegalities. (Goltsman & Hörner, &Pavlov & Squintani (2009)). It is also known that arbitration
leads to protection and offer of justice to endangered groups in the society, these. may include
children. Moreover, arbitrations are well documented and preserved for future reference in
similar disputes.
Disadvantages of Arbitration
The time and resources used in arbitration make it demanding and expensive. This may
see to it that those without resources do not receive justice. Above this, arbitration requires
resources and bureaucracies to enforce the rulings made in disputes. Technicalities are a
likelihood in arbitrations.
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Qualifications of an Arbiter
A good and reliable arbiter must be accepted by all parties in a dispute. They should
have the following traits:
Have ability to communicate effectively
They must also be patient and good listeners to ensure they listen to both parties.
Confidentially and secretive with details from non-participants ho
They must be honest. (Elrod & L. (2020)).
They must exhibit empathy and understanding
The process of dispute resolution is result oriented. These means all parties must be
willing to have a consensus and solutions. It is up to the parties to choose either to use the
traditional legal process or mediation. In cases involving parties that cannot speak for themselves
like children, refugees among other vulnerable persons, then, mediation is not applicable.
Commencing one approach does not mean the other cannot be applied. Parties can always go for
the alternative at any stage.
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References
Elrod, L. D. (2020). The Need for Confidentiality in Evaluative Processes: Arbitration and
Med/Arb in Family Law Cases. Family Court Review, 58(1), 26-45.
Goltsman, M., Hörner, J., Pavlov, G., & Squintani, F. (2009). Mediation, arbitration and
negotiation. Journal of Economic Theory, 144(4), 1397-1420.
Weston, M. (2020). Buying Secrecy: Non-Disclosure Agreements, Arbitration, and Professional
Ethics in the# MeToo Era. Arbitration, and Professional Ethics in the# MeToo Era
(February 21, 2020).
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