MEDIATION AND ARBITRATION

MEDIATION AND ARBITRATION.

MEDIATION, is a non aggressive causal forum to solve a dispute. One person called a mediator will listen to both sides of the disputes in an informal setting.

            Is a negotiation process in which the disputing parties are assisted by a neutral third part to resolve their problems or differences.

            Is a third part intervention in a conflict.

In mediation, the mediator tries to facilitate a resolution. Any resolution made by the mediator typically is not binding on the parties unless agreed otherwise.

TYPES OF MEDIATION

v     Individual mediation – mediation done by an individual who is neutral and knowledgeable

v     International organization mediation – done by international organizations, like regional grouping and economic integrations.

v     State mediation – negotiations or mediations which are done by a state.

STEPS OF MEDIATION

v     Individual meetings; these are introduction meetings with a mediator, aiming at discussing your concern and clarify the mediation process

·        The mediator will help the disputants of what they want and how things could be improved

v     Meetings between party and mediator; this is an approach were the mediator arrange separates meetings with the disputants, each part in this meeting discuss their own concern and feeling with the mediator.

·        The mediator should treat every group especially equally and will not dreulge details of this discussion unless he has permission to do so.

v     Joint mediation; disputants should tell the mediator that they are ready to seat together.

·        Both parties take parts in the joint session, a mediator will arrange to meet them with the other and will ensure you enter the room at the same time

·        This meeting will be open, and frank discussion of the issue will be done led by the mediator to ensure fairness and appropriate behavior

·        The mediator will run the session and accommodate brakes ( stopping the session if any one feels uncomfortable )

·        During the joint meeting, either part can ask to see the mediator privately, if this happen it will be done in the side room.

v     Concluding the mediation process; the mediator will help the parties to draw up simple statement outlining the key agreed areas. All the parties will need to sign and data the argument, which will also be signed by the mediator an parties can keep copies for their records.

v     After mediation, the mediator will contact all parties after appropriate time, mostly three months to check how things are progressing especially the implementation of the agreement. ( monitoring and evaluation of the implementation )

A MEDIATOR is a volunteer trained person to facilitate discussion and allow the parties to work out solutions to the problems.

v     Although the mediator may shuttle between the parties it is usually best that the parties meet with the mediator in a conference. The parties may lead a settlement or they may not but it is the parties which determine the outcome and not the mediator

v     The mediator only facilitate the negotiation process between the parties

v     Normally if the mediation process fails to bring about a settlement we have an arbitration process in which a neutral third part will hear both sides and lender a legally binding decision.

CHARACTERISTICS OF A MEDIATOR/ QUALITIES OF

                   A MEDIATOR/ARBITRATOR

Although it is crucial for successful mediation that both parties be interested in reaching an agreement, there is another factor of primary importance. A professional and well prepared mediator has powerful resources to guide the negotiations towards fair agreement.

A good facilitator needs to be;

v     Neutral and impartial, neutrality means a mediator needs to have no bias, prejudice and stereotype.

v     Flexibility

v     Tactfulness

v     Non- judgmental

v     Positive/optimistic

v     Maintain confidentiality

v     Honesty/intergrity/ethical standards

v     inoffensive

v     Listening and paying good attention to both sides ( attending skills)

v     Good in communication skills, language used, gestures (body language and emotions)

v     Facilitative and therefore knowledgeable and well informed about the issue

v     Assistive to parties or has to assist parties to focus on the basic problem and put aside destructive arguments and emotions

v     Respective, should have respect and also met other parties ( respect the problems of parties involved)

v     Considering all parties equal and maintain an equality between parties during mediation

v     Creative, as to find possible solutions

v     Provisions and knowledgeable about legal issues

v     Patient, determined and able to display empathy. Feels as part and parcel of the problem

ROLES OF A GOOD MEDIATOR

v     Prevent, resolve or contain problem

v     Build bridges when relationships are weak

v     Equalize an equal situation and act as a witness to problems that have gone unacknowledged

v     Act as a detective by digging up underlying motives ( needs and fears)

v     Building trust on both sides

FUNCTIONS OF A MEDIATOR

v     Focusing and generating of trust, encouraging the parties to see that there is a way forward

v     Reframing of conflict, to help reframe the conflict as a common problem

v     Observing of ground roles, to assist in creating the atmosphere in which emotions can be expressed but also managed.

v     Clarify issues and options

v     Shifting focus from past to present

v     Encouraging creative solutions

ARBITRATION

Is a legal process in which two or more person or parties agrees to let an impartial person make the final legally binding decision in their disputes.

v     Testimony is heard from both sides and can be recorded by a court reporter.

v     Arbitration awards can be non- binding or binding depending on the understanding of the parties in the proceeding.

v     If the arbitration is non-binding either side if unhappy with the award can appeal to the court of jurisdiction to decide the outcome

v     When the decision of the arbitrator is binding on the parties, the decision is final. Both sides must accept and live with the judgment without any right of the court appeal.

v     Arbitration is a private and informal adjuratory process similar to a court. The arbitrator makes a decision that is legally binding and enforceable upon the parties.

v     The hearing is much less formal in procedure than the court but each part has the right to present proofs and arguments as in the court of law.

v     In arbitration, the disputants give up the power to create common solutions of the problem in the hands of the arbitrator.

WHO ARBITRATES?

ARBITRATOR, Is a person who has been oriented in arbitration procedures however before arbitration, contending parties must sign argument for arbitration.

            In effect when parties have agreed to have their dispute arbitrated, they give jurisdiction and control of their dispute to the arbitrator

AN ARBITRATOR CAN BE;

v     An individual

v     Panel selected to conduct the arbitration and to make final binding decisions of the dispute.

ARBITRATION PROCESSES/PROCEDURES

v     Schedule of hearing, usually it takes 18 to 30 days from the time the process is initiated

v     Presentation- parties to the arbitration may present their own cases

v     Hearing- the arbitrator listen to both parties to the conflict

v     Decision making – you may have a decision of an arbitrator.

·        After hearing, the arbitrator deliberate on the conflict and issues a decision in writing which is sent to each party usually after three days and the decision is final and legally binding.

v     Decision enforcement – you may have the decision of the arbitrator confirmed to the court of confident jurisdiction if you make application to the court, if so, it will be treated and enforced in all aspects as judgment of the court.

·        It is the responsibility of the prevailing part to see the enforcement action and to notify if the other part is delinquent in complying with the decision an arbitrator.

v     Appealing decision – if one part believes that the arbitrator made a mistake or miscalculation or misunderstanding to clarify the decision, that part may petition the arbitrator for modification under arbitration rules.

DIFFERENCES BETWEEN A MEDIATOR AND AN ARBITRATOR

In differentiating a mediator and an arbitrator, the following criteria are taken into consideration

v     Meaning

v     Judgment

v     Applicability

v     Roles

CRITERIA	A  MEDIATOR	AN ARBITRATOR
MEANING	A mediator is usually one who resolves disputes between people, organizations, states or any other communities	An arbitrator is a neutral person chosen to resolve conflict/disputes outside the court
JUDGMENT	A mediator does not deliver the judgment. A mediator facilitates dialogue between two parties and it is up to them to come to agreement and agreement is not binding.	An arbitrator’s judgment is considered final and binding.
APPLICABILITY	A mediator is usually chosen to resolve minor disputes or when the parties do not wish to enter the litigation track	An arbitrator gains importance in case of major disputes or when the parties are unreasonable or when a specific area of expertise is required
ROLES	A mediator is more a facilitator who assists in developing options and achieving a mutually agreed resolution	An arbitrator is the judge of the dispute and provide resolution measures which are binding on the parties

LITIGATION – a legal process in the court, a judicial contest to determine and enforce legal rights (judicial proceeding)