Many conflicts can be resolved by direct negotiation between the parties (and their lawyers.) However, mediation should be the preferred method of resolving those disputes and conflicts that are unable to be resolved by direct negotiation. Not every dispute is appropriate or suitable for mediation. In the following chart, I have compared three of the most popular methods of resolving conflicts - mediation, arbitration and court (litigation). Thus, you can compare the features of each method and satisfy yourself as to the most appropriate way to resolve your dispute.
| |
Mediation |
Arbitration |
Court (Litigation) |
| Abuse - if abuse is non-existent |
suitable |
suitable |
suitable |
| Abuse - if level of abuse is low |
suitable |
suitable |
suitable |
| Abuse - if level of abuse is medium |
may be suitable |
suitable |
suitable |
| Abuse - if level of abuse is high |
not suitable |
suitable |
suitable |
| Adversarial |
no |
somewhat |
yes |
| Attorneys (lawyers) included |
yes (usually) |
yes (usually) |
yes (usually) |
| Attorney's (lawyer's) role |
advisor |
advocate |
advocate |
| Communication generally is |
between parties |
between lawyers |
between lawyers |
| Compliance with result |
better success rate |
not as good a rate |
poorest rate |
| Confidential |
yes |
yes |
no |
| |
Mediation |
Arbitration |
Court (Litigation) |
| Control - who has it |
parties |
arbitrator |
judge |
Co-operation between parties
(in future) |
best opportunity |
good opportunity |
poorest opportunity |
| Cost |
least expensive |
somewhere in between |
most expensive |
| Decision-making done by |
parties |
arbitrator |
judge |
| Decision binding and enforceable |
yes |
yes |
yes |
| Discovery available |
no |
limited |
yes (usually) |
| Emphasis is on |
co-operation |
conflict |
conflict |
| Evidence given |
no |
yes |
yes |
| Feelings can be expressed |
yes |
no |
no |
| Feelings can be explored |
yes |
no |
no |
| |
Mediation |
Arbitration |
Court (Litigation) |
| Feelings can be addressed |
yes |
no |
no |
| Final result determined by |
parties |
arbitrator |
judge |
| Flexibility on when and where |
very flexible |
flexible |
rigid |
| Formality |
very informal |
somewhat formal |
very formal |
| Injunction can be granted |
no |
yes |
yes |
| Interim order can be made |
no |
yes |
yes |
| Lawyers included |
yes (usually) |
yes (usually) |
yes (usually) |
| Lawyer's role |
advisor |
advocate |
advocate |
| Legal Aid covers it |
no |
no |
sometimes |
| Legal precedent set |
no |
no |
yes |
| Limitation period stopped running |
no |
no |
yes |
| Location - Courthouse |
no |
no |
yes |
| |
Mediation |
Arbitration |
Court (Litigation) |
| Maintain future relationship |
best opportunity |
good opportunity |
poorest opportunity |
| Media can report |
no |
no |
yes |
| Neutral - Chosen by parties |
yes |
yes |
no |
| Neutral - Name |
mediator |
arbitrator |
judge |
| Neutral - Decides outcome |
no |
yes |
yes |
| Neutral - Helps parties to talk |
yes |
no |
no |
| Neutral - Paid for by |
parties |
parties |
taxpayers |
| Next step if process fails |
arbitration or court |
court |
higher court |
| Outcome determined by |
parties |
arbitrator |
judge |
| Place of hearing decided by |
parties |
parties |
court |
| Public can attend |
no |
no |
yes |
| Result |
most creative |
less creative |
least creative |
| Result |
win/win |
win/lose |
win/lose |
| |
Mediation |
Arbitration |
Court (Litigation) |
| Satisfaction level |
highest |
somewhere in between |
lowest |
| Scheduling |
most convenient |
more convenient |
least convenient |
| Speed of process |
fastest |
somewhere in between |
slowest |
| Stress level |
lowest |
somewhere in between |
highest |
| Temporary order can be made |
no |
yes |
yes |
| Witness box |
no |
yes |
yes |
| Witnesses testify |
no |
yes |
yes |
| Witnesses cross-examined |
no |
yes |
yes |
|
