Arbitration is at the other end of the dispute resolution spectrum. It is a fundamentally diferent process than mediation.
While the parties retain control over aspects of the process, they give to the arbitrator the power to decide the outcome of the dispute, including, often, who bears the costs of the process. Whereas in mediaiton the aim is to assist the parties reach their own solution, the aim of arbitration process is to enable the parties to put their positions as fully, effectively and efficiently as possible so the arbitrator can decide the issues quickly and fairly. Obviously, where a third party is making decisions, fair process and natural justice take on fuindamental importance.
Arbitration can provide a quicke cost effective and private way of resolving disputes where, for instance:
- the parties need certainty that the process will provide them with an outcome (ie. not dependent on their reaching agreement)
- the precedent value of having a decision made will be of value to the parties
- there are technical/ legal findings that need to be made before the parties can move forward.
Attached here is a link to the AMINZ Arbitration ptotocol.
It is important to note that Mediation and Arbitration are parts of the same continuuum of processes designed to resolve disputes. Each has a different focus but there are features of each process that the parties may value. Hybrid processes which seek to combine, for instance, the benefit of the parties being helped to find their own solutions with the certainty of providing an outcome for them if they can't , are valid. There are issues that parties need to consider before embarking on such a process but there may be real value in considering them. Click here for a link to an essay on the topic prepared for my Massey programme which discusses some of those issues.