Explaining Mediation & Arbitration
Dr. David Silvera
Mediation has increased considerably in popularity and usage across a variety of contexts. In spite of its growing usage, however, mediation continues to lack a coherent evidence-based model, which contributes to a persistent division between the science and practice of mediation.
Mediation is a voluntary process wherein two or more parties to a dispute try to resolve their differences with the assistance of a neutral, disinterested third party, who has knowledge in conflict resolution and passed a training in mediation, negotiation and human relations.
In most instances, the cost of the mediator is shared equally between the parties. The cost of retaining a mediator to assist in resolving a dispute will vary depending on such factors as the experience level of the mediator, how busy he or she may be the nature of the dispute, the complexity of the issues presented, and the number of involved parties.
Most private mediation centers bill for their mediator's time on an hourly basis however, others bill a flat fee for a half or full day.
Mediation is not, like arbitration or trial, adversarial in nature. As such, parties to a dispute can mediate their differences without an attorney..
Anything said during mediation is inadmissible in court. Thus, it is not uncommon to see parties who partake in a mediation sitting together in a conference room and, with the assistance of the mediator, working toward identifying the contested issues and then brainstorming to resolve them.
Mediation is a give and take process where there is no declared winner and no declared loser. The mediator search for the common interest of the parties in conflict, to a win-win solution, that answer the interest of both.
A mediation agreement can have the approval of the Court as a verdict.
For mediation to be successful, it is important that the mediator keep up to the process that can make the change – from confrontation to collaboration.
Mediation is favored and recommended in cases involving neighborly disputes, family disputes, or where parties to a lawsuit involving a claim for monetary damages believe that with the intervention of a neutral third party, a settlement can be achieved.
Mediation is also used in Business, commercial and consumer conflicts.
Mediation is often the easiest and most cost effective way to resolve disputes. The major drawback to mediation is that if no resolution is achieved, the other side will, by virtue of disclosures in mediation, have a better feel for what theories or claims (and strengths and weaknesses thereof) one might proffer in litigation.
Mediation is used in divorce and family disputes.
Mediation is a systematic process. Parties to the conflict use intermediaries—professionals who specialize in mediation—to reach an agreement.
When it is important to continue a normal relationship between the disputing parties, mediation is a particularly suitable method.
It is also well suited for parties who wish to end a relationship in a dignified manner.
In Business, Partnership, Marriage, ete….
For these reasons, mediation is particularly suitable for all family disputes and divorce proceedings. During mediation, spouses meet under favorable conditions and within a relaxed atmosphere with a professional mediator.
Mediation relieves tension and helps each party to define clearly his or her position on various issues. The mediator facilitates rational and practical communication in order to make decisions about a family’s future (e.g. property division, childcare, family economics, et cetera).
The mediator is an objective and neutral, does not take sides in favor of one party or the other, and does not make decisions for the family. The couple’s decision forms the basis of the divorce agreement, and will be considered valid after approval by a family court.
All procedures and content of the mediation process will remain secret from the Court or any other formal or informal organization or person. No minutes at the mediation room.
The Israeli Court approved in a verdict that a mediator is not obliged to give an evidence in the Court or to discover any information given by any of the parties in the mediation room.
Parties are not allowed to invite a mediator to submit an evidence to the court in any way –not in writing and nor oral.
Mediation has definite stages involving a series of techniques for accomplishing necessary tasks.
The main element in the work of the mediator is to distinguish between statements and interest, between the known to the hidden.
Considerable efforts have been made to regulate mediation within the legal system.
In Israel, for example, agreement reached through mediation process, will get the verification of the court, which will give the agreement reached a verdict, as if there was a court case.
This process has encouraged people & organizations, to seek mediation as a means of solving conflicts, and as a dialogue for consensus building, especially in multi-cultural societies..
Arbitration differs little from a bench trial (a trial in which the judge serves as trier of fact as opposed to a jury fulfilling that role). Arbitration may be binding or non-binding. Binding arbitration is usually by agreement of the parties with each expressing, in a writing, a willingness and commitment to be bound by whatever decision the arbitrator may reach.
Non-binding arbitration affords the losing party the opportunity to seek a trial de novo (a trial on the merits without regard to the arbitrator's findings) however, there are often penalties imposed on the party requesting the trial de novo if he or she does not achieve a better result in trial than achieved in arbitration. The cost is similarly based on an hourly rate or half or full-day basis.
In advance of arbitration, with all sides usually represented by counsel because arbitration is an adversarial proceeding, the arbitrator will be provided briefs detailing the positions, arguments and demands of each side. The rules of evidence in arbitration proceedings are quite liberal.
As such, documents and other writings that might be excluded from evidence in a trial will be received and considered in arbitration. Arbitration will proceed in whatever fashion the parties' desire.
MEDIATION AND other techniques (known generally as Alternative Dispute Resolution – ADR) are highly effective alternatives to litigation.
There is considerable recent literature on mediation and other alternative dispute resolution (ADR) techniques, in English as well as in Hebrew. Much of this literature provides anecdotal or statistical evidence to support the assertion that these techniques are effective in practice and provide certain advantages when compared to the traditional adversarial process of litigation.4
Mediation arose with the raise of the ADR (Alternative Dispute Resolution) movement in the USA as critiques that the legal system at the Court does not help to bring Justice, but causes costly delays and damaged relationships.
This article is based on the book published in Germany (2020) by Veriag Edition AV as pare of common effort with Prof. Hans-Joachim Werner and Alan Flashman, "Verbundenheit im Gegenuber Martin Buber Und der Umgang mit Konflikten".
..And a Book written in Hebrew "גישור מדריך מעשי" by Burci Publication ( 2018) written by David Silvera and Alma Sharon.