Arbitration and mediation law relates to dispute resolution methods that allow individuals or businesses to reach a private agreement about a situation that would otherwise be litigated in court. Each process has advantages and disadvantages to consider.
Arbitration fundamentals
Arbitration is a part of arbitration and mediation law practised to resolve disputes where parties appear before an arbitrator, who may be a retired judge or someone with industry experience. The arbitration process is like a court case in that each side can present evidence, offer witness testimony, and make arguments, but it is less formal. Lawyers may represent both parties.
The parties agree that an arbitrator will decide the outcome of the dispute. Arbitration can be binding, which means you can’t go to court if you’re unhappy with the result, or nonbinding, which means you can still go to court if you’re dissatisfied with the outcome.
Many new contracts include arbitration clauses requiring the parties to resolve disputes through arbitration. These clauses can harm small businesses and consumers who sign a contract with a large corporation. For example, the clause typically specifies the location of the arbitration, which may be inconvenient or costly for the consumer. An arbitration clause is also typically a take-it-or-leave-it situation. In this case, if the consumer does not agree to the arbitration clause, the deal is terminated, which can result in a power imbalance.
The Arbitration Foundation of Southern Africa is one of several organisations that can facilitate successful arbitrations.
Benefits and drawbacks of arbitration
Arbitration has several advantages, including:
- The process is less expensive and faster than going through the courts.
- The arbitrator is chosen by the respective parties to reach a decision, while in court, a case is decided by a judge.
- The arbitration proceeding is kept private and is not public record.
- Finally, arbitration proceedings are less formal than court proceedings, with more lax rules.
However, there are some disadvantages as well:
- If the arbitration is binding, you have no further recourse, as you would in a court of law.
- While arbitration is generally less expensive than a trial, the costs of arbitration have been steadily rising, making it a costly process. The reason for this is that the parties must share the costs of the arbitrator, the venue, and the transcription services (all of which a High Court provides free of charge).
Mediation fundamentals
Mediation is a part of arbitration and mediation law in which a neutral third party, the mediator, works with the disputing parties to reach a mutually acceptable resolution. The mediator is typically trained in mediation and may be an attorney, a retired judge, or, in some cases, like divorce, a therapist. The mediation process is cooperative and focused on resolving issues so that each party is satisfied with the outcome.
A series of meetings is used to handle mediation. No formal hearings are held. Instead, the mediator may meet with the parties jointly or separately and, rather than deciding on the dispute, may write up the agreement reached by the parties. The agreement is nonbinding until it is converted into a court order or judgement.
Benefits and drawbacks of mediation
There are numerous benefits to using mediation to settle a dispute, including:
- The procedure is less expensive than going to court.
- Mediation is a much faster way to reach an agreement than going to court.
- The process is confidential and not part of the public record.
- In addition, the mediation process can be as flexible as the parties require, which means it can be as long or as short as needed and scheduled whenever everyone agrees.
- Furthermore, the creative nature of the process allows the parties to come up with their own solutions to the problem, which can be as unconventional as they like.
- The parties can talk and negotiate directly with each other, allowing them to get to the heart of the matter.
- Mediation fosters conflict-resolution skills, so parties who participate in mediation may be able to use those skills on their own later, avoiding both court and mediation.
- Mediators are completely impartial and make no decisions in the case. Instead, the mediator’s role is to guide the parties, make suggestions, and move the process forward.
- In mediation, no one wins or loses. Instead, the parties work together to reach an agreement.
Mediation, like arbitration, has some drawbacks to consider, including:
- Mediation may be difficult for people who are not comfortable speaking up for themselves.
- Mediation may not be fair if the parties have an imbalance of power. For example, mediation is usually not an appropriate way to resolve a family law issue in families where domestic violence has occurred.
- Mediator training and certification standards vary significantly, so you may need to shop around to find a mediator with the experience you require.
- Mediation is unlikely to succeed if the parties are firmly entrenched in their respective positions.
- Because a mediation agreement is not legally binding, compliance issues may arise.
Arbitration and mediation law offers options that are faster and less expensive alternatives to traditional court proceedings. However, they are not one-size-fits-all, so think about what might work best in your situation.
Why choose Bregman Moodley Attorneys Inc
We provide fixed-fee legal services based on the value of the work performed rather than the number of hours worked, except in litigation cases. In addition, several of our clients have a retainer option tailored to their specific business needs.
Although we cannot guarantee results, we can assist clients in understanding the most likely outcomes. To ensure your satisfaction, we will provide you with an honest and open assessment of your case and establish expectations with you upfront.
Finally, directors Roy Bregman and Sharusha Moodley are accredited mediators specialising in arbitration, mediation, and alternative dispute resolution.
Contact Bregman Moodley Attorneys for details
Dispute resolution procedures are viable alternatives to costly and time-consuming litigation. Our dispute resolution lawyers can help you with these issues. If you have any questions about arbitration and mediation law, contact our experienced legal team for professional assistance. Additionally, you can browse through our services to find precisely what you need.
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