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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
In broad terms an arbitrator has all the powers of a High Court judge.
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.
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.
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.
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.
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.
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.
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.
Normally by the parties in equal shares in advance of the mediation meeting.
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.
The team has a broad range of experiences across practice areas, allowing them to draw upon these in complex commercial cases; for example those including company, property or trust law issues.