Arbitration vs. Mediation

TDT | Manama

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DR. ABDELGADIR WARSAMA GHALIB

From legal perspective and as a constitutional right, people used to go to Judicial Courts for litigation whenever there is an unsolved dispute. This approach, has been going-on till now and likewise will continue for long future. However, by time and due to many uncountable reasons including time constraints, people started to look around into alternative appropriate options for settlement of disputes.

Among the alternative dispute resolutions (ADRs), we find arbitration, mediation, adjudication, conciliation..., etc. However, we could say, the most workable alternatives are arbitration and mediation. The debate scenario of “arbitration vs. mediation” is one that goes on since some time, as people wonder and question themselves as to what is the best alternative way to look into a dispute that may emerge in these volatile economic situations and unsettled business.

However, it would be very important to mention that, there are many conceptual and procedural differences between arbitration per se and mediation. Arbitration versus mediation is mostly about formalities of the proceedings, the purpose of the events, and the enforceability of decisions awards made therein.

With reference to mediation, the mediators typically sit down with the disputing sides and try to hammer out a deal before it has to reach the Court level. The proceedings are generally quite informal in many cases, as these mediators patiently try to make as comfortable as possible. To attempt to open a joint dialogue openly or in private caucus with clear steps … hopefully to go-on and materialize.

Regarding arbitration, it is more formal and can be like court proceeding. The arbitration tribunals listen to both sides and then a final award on what the panel feels is the fairest just decision. Arbitration, in one hand, is essentially another form of trial with two sides presenting their issues before a tribunal. Whereas mediation, is a form of resolution for the dispute, with two sides trying to come together on a deal that makes sense to most parties.

Arbitration award and decisions are generally enforced by the Courts (execution Courts) the same way as Court decisions, while mediation agreements are typically things that have to be acted upon further as the first step towards settlement of disputes.

Many believe that, a good mediation attorney mediator will tell you that it’s cheaper and wiser to solve a problem through mediation first before opting to other hectic or lengthy settlement process.

In many contracts they provide, if the parties are unable to resolve the dispute, either party may give the other written notice of the existence of a continuing impasse and they shall submit the dispute to mediation. The parties agree to participate in good faith in the mediation and negotiations with the selection of the mediator. Each party shall bear its own costs relating to such mediation, and they shall equally share the mediator’s fees and the use of mediation will be without prejudice to the rights of the parties in all respects if the mediation does not achieve a resolution and if the dispute is not settled, the parties may proceed to arbitration.

Both arbitration and mediation are fast and their relief in some cases could be imminent, whereas in litigation the issue may go-on for years and at the end no valuable gain or minimal result. Arbitration or mediation are now taken through professional institutes and centers, in other words, institutional process.

We strongly, recommend seeking justice through arbitration or mediation, depending on the merits of each case for the concerned parties.

Advisable, to take the most appropriate action to save your interests swiftly as, delay of justice is denial of justice. In practice, lately, claimants could opt to go first for mediation and after that to take the outcome of the mediation, in addition to other factors, for final settlement through arbitration which gives final award. This could be mentioned in the contract to explain the process and procedure as aimed by the parties.

This comes, as a kind of agreeable inter-marriage relation between mediation and arbitration, to achieve justice and rule of law by acceptable means for settling disputes between the parties.

(The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Daily Tribune)