• Contact Us
Arbitration & Mediation FAQs

Arbitration & Mediation FAQs

Litigation & Dispute Resolution

Arbitration and Mediation Frequently Asked Questions

Deciding whether arbitration, mediation or litigation is an appropriate method to resolve a commercial dispute can be a daunting and potentially confusing task. Here we outline the key differences between each different form of dispute resolution in our arbitration and mediation FAQs.

Should you need legal advice or assistance with any aspect of arbitration, mediation or litigation, we have an experienced team of solicitors available to help you.  


Frequently Asked Questions


What is arbitration?

Arbitration is an alternative to litigation and mediation to resolve a dispute. An independent, trained arbitrator, agreed by the parties or centrally appointed, considers documents and/or hears oral evidence and arguments to determine the dispute, including any specific issue(s) agreed as relevant by the parties.

Top of page


What is mediation?

Mediation is an alternative to litigation and arbitration to resolve a dispute. An independent, trained mediator, agreed between the parties, meets the parties and helps them to find a mutually acceptable outcome to their dispute.

Top of page


What are the differences between arbitration, mediation and litigation?

  • Arbitration is a process, set out in the Arbitration Act 1996 yet largely controlled by the parties, that the parties may already have agreed or may agree following a dispute arising, to use to resolve their dispute or any agreed issue(s). The independent arbitrator appointed decides the dispute, including any interest and costs, by an award between the parties. An award is binding and can be enforced through the courts.
     
  • Mediation is a process that the parties may already have agreed, or can agree following a dispute arising, to use to try to resolve their dispute. The independent mediator does not decide the dispute but facilitates its resolution by the parties themselves. Any settlement decision reached is only binding once confirmed by the parties in writing and signed or when made into a consent court order (where court proceedings have already been issued).
     
  • Litigation is the process of resolving a dispute through the courts, on payment of court fees when a claim is issued and at later points in the court process. The judge is a public servant who is paid by the state.

Top of page


What are the advantages of arbitration?

Arbitration is normally cheaper and faster than litigation but can achieve similar outcomes. The process is confidential, simple, set out clearly in the Act, and allows the parties to retain a high degree of control.

Top of page


What are the advantages of mediation?

Mediation is normally the fastest option with the parties retaining a high degree of control. The process is confidential and without prejudice (until a settlement agreement is signed).

Top of page


How can an arbitration start?

There has to be an agreement in writing to arbitrate. This can be agreed by the parties at the outset, eg as the intended dispute resolution provision in a contract, or only once a dispute has arisen.. One party must then serve notice on the other(s) that it is invoking the arbitration agreement.

Top of page


How is the arbitrator appointed? 

The parties may agree on an arbitrator and if they cannot, then the arbitration agreement may specify the process, eg to be appointed by the President of the Law Society. In limited circumstances the court may be asked to appoint the arbitrator.

Top of page


Does the arbitrator have to be a lawyer?

No, while arbitrators are often lawyers, due to some of the court-like processes involved in arbitration, any person who has been duly trained and certified may act as an arbitrator.

Top of page


How and where does an arbitration take place?

The parties may agree and ask the arbitrator to decide the dispute just on paper or by hearing oral evidence and submissions instead or as well. If the parties cannot agree the arbitrator may seek to influence the parties and in the last resort can impose a process on the parties. If there is to be a hearing it will be for the parties to arrange a suitable venue and facilities, although if an arbitrator works for a professional firm, such as VWV, that firm may be able to provide a suitable hearing venue.

Top of page


What does the arbitrator have to do?

In deciding the issue(s) agreed by the parties or necessary to resolve the dispute, the arbitrator must act fairly and impartially between the parties, adopt the most suitable and fair procedure to resolve the dispute and  avoid unnecessary delay or expense. Once paid the arbitrator must issue an award setting out the result, giving reasons if asked by the parties to do so.

Top of page


What are the powers of an arbitrator?

In broad terms an arbitrator has all the powers of a High Court judge.

Top of page


How is the arbitrator paid?

Unless the parties agree otherwise, the parties either share the arbitrator's fees or pay them (or repay all or part of any fees paid in advance) as set out in the award.

Top of page


How can a mediation start?

Mediation may be the contractually agreed step in a dispute resolution process or the parties can agree to mediate at any point, even if litigation or arbitration is already underway. The court cannot impose mediation on the parties but it can penalise one or both of them later by a costs order if the court feels that they have unreasonably refused to consider mediation or have not acted in good faith during mediation.

Top of page


How is the mediator appointed?

By agreement between the parties, who normally suggest a number of alternatives to each other. Care may be needed if the mediator would benefit from specialist expertise, eg to  more readily understand a specific topic, but generally it is not vital for a mediator to have any specific subject matter expertise.

Top of page


Does the mediator have to be a lawyer?

No, although a working knowledge of how other dispute resolution options, particularly litigation, work, the relative advantages and disadvantages and comparative likely cost, help a mediator.

Top of page


How and where does the mediation take place?

It is for the parties to agree the date, location and necessary facilities for the mediation, although many mediator organisations, VWV Mediators included, offer mediation facilities as part of the mediator's costs or for limited additional cost.

Top of page


What does the mediator have to do?

The mediator will explore with each party in private the strengths, weaknesses, costs and other risks and any opportunities of their case against what they wish to achieve. The mediator will then use whatever means are most likely to assist and enable the parties to identify and then achieve common ground sufficient to allow the dispute to be settled. Mediation is not constrained by the rules and procedure of a court.

Top of page


What are the powers of a mediator?

The mediator has no powers, merely tries to use the persuasive dynamics of having the parties, their legal advisers, if any, and any ultimate decision maker, eg an insurer, present at the same time in order to bring about sufficient changes in the parties positions to resolve the dispute.

Top of page


How is the mediator paid?

Normally by the parties in equal shares in advance of the mediation meeting.

Top of page


Isn't a willingness to mediate often seen by the other party as an admission of weakness?

No. Trying to resolve a dispute by any legitimate means without involving litigation is a rational, sensible and commercial step, which recognises that litigation is an inherently uncertain and very costly exercise. Remember that each party's own time involved in litigation is not, and all its legal costs are seldom, capable of being recovered from the losing party anyway.

Top of page


For specialist legal advice and support with arbitration or mediation, please complete the form below.

The team is always fast to respond, excellent at keeping us informed of progress and very quick to keep things moving.

  • Chambers & Partners 2021 | Litigation & Dispute Resolution Team

Get in touch

Are you looking for legal services? Please complete the form below to find out how our specialist lawyers can support you.
First name(*)
Please enter your first name.

Last name(*)
Please enter your last name

Email address(*)
Please enter a valid email address

Telephone(*)
Please enter your telephone number.

I prefer to be contacted by:(*)

Invalid Input

How can we help you?(*)
Please limit text to alphanumeric and the following special characters: .,?

Preferred office location:
Should you need to visit an office

 

See our privacy page to find out how we use and protect your data.

Invalid Input

Meet the Team

Our experienced dispute resolution and litigation solicitors provide a national legal service via our offices in London, Watford, Bristol and Birmingham.

View All
Ed Husband - Partner & Head of Litigation & Recoveries - VWV Law Firm
Partner
Ben Holt - Partner & Dispute Resolution Solicitor in Bristol - VWV Solicitors
Partner

Litigation & Recoveries

Reputation Management

Nick Martindale - Partner & Dispute Resolution Solicitor in Bristol - VWV law firm
Partner

News & Events

 
VWV expands Commercial Litigation team with notable addition of Terence Dickens
VWV is thrilled to announce the addition of Terence Dickens to our commercial litigation team, based in our Bristol office.
27 Mar 2024
VWV announce important expansion to national Family Law team
VWV is pleased to announce the addition of Bindu Malkan, an experienced family law specialist, as a Partner in our Watford office.
2 Feb 2024
VWV secures win in tender process for Wiltshire Council's legal services framework
In a significant step expanding its legal services within the public sector, VWV has announced a successful bid to offer comprehensive legal expertise to Wiltshire Council.
30 Jan 2024