Mediation Services versus Arbitration: What’s the Difference?

Mediation Services versus Arbitration: What’s the Difference?

Mediate2go: Mediation Services versus Arbitration: What’s the Difference?

Intro - Forms of Alternative Dispute Resolution

Mediation and Arbitration are two forms of alternative dispute resolution (ADR).  This means that they are ways of settling disputes without having to resort to the court system and traditional litigation.  Remember that the starting point to both mediation and arbitration is consensual.  That is, both parties have decided to use mediation or arbitration as a “first resort” rather than simply going to court.  Some jurisdictions in Canada and the United States have mandatory mediation for certain types of disputes. 

Often, a mediation or arbitration process may arise because the parties have a contractual relationship that specifies that any disputes will be solved by such methods.  Other times, the parties voluntarily agree to do so because it appears that a mutually agreeable result might be more readily attainable, or because a more timely decision is needed than would be available through the courts.  Another major benefit is that both are private, so evidence and any settlement or order that is eventually reached need not be disclosed to the public. 

There are reasons why choosing mediation or arbitration (or neither) might make more sense than the other options, depending on the situation. This post should serve as a short guide to how and why you might consider either option.

What is Arbitration?

Traditional Process

Arbitration is more like a traditional courtroom process than mediation. Both sides and their representatives (lawyers, usually) appear before an arbitrator, who is an individual selected to resolve the specific dispute. At the outset, the parties can adjust or agree on specific rules for the arbitration. This can help speed up the process or make it more efficient for the parties.  For example, the rules of evidence or disclosure of documents may be altered from what they might be in the jurisdiction’s court system.  After a sort of “trial”, which includes different procedural stages such as submission of evidence and arguments, the arbitrator renders a final decision.  The decision of an arbitration can be enforced like a court order and is binding on both of the parties.  The parties can agree to limit the right to “appeal” the decision of an arbitrator. In such cases, unless there are obvious and serious violations of procedural rules or norms, the outcome is final.

Advantages to Arbitration

There are several advantages to arbitration.  An obvious one is the ability of the parties to choose the arbitrator.  For commercial parties, this could mean picking someone with much expertise in the area of the dispute.  This can easily save time and reduce the need to introduce certain types of evidence, because the arbitrator is already familiar with the subject area and the applicable law. Arbitration can save time and can get to the final judgment stage much more quickly than a standard trial. Sometimes the benefit of having an issue decided once and for all can be a huge benefit, even for the party that loses.  Arbitration can also be less costly, especially when it does not drag on. Many of these benefits are more likely to be attained when the parties have a detailed and satisfactory “arbitration agreement”, which is the document that sets the rules for the arbitration.

Issues with Arbitration

Those considering arbitration should be aware, however, that the financial costs are not necessarily lower than relying on the court system.  Any lawyers and representatives still need to be paid, as does the arbitrator.  Depending on the rules of the arbitration agreement, it may or may not be possible to award “costs” as part of the decision.  The potential limits on the right to appeal may not sit well with parties who initially agree to such terms, but then find themselves on the losing end.

What is Mediation?

Mediation, a more flexible process

Mediation is most different from arbitration in that it never results in an “order”, though it may still result in a settlement. In a mediation, a third-party mediator prompts and guides the parties through a negotiation process. This is notably less formal than courtroom proceedings or arbitration. Mediators are not judges and they do not act like them. Instead, they help facilitate discussion in the hope that the parties may come to a mutually-agreed resolution - a consensual settlement. Mediations may take hours or days depending on the parties and the complexity of the case involved.   

Advantages to Mediation

Like arbitration, the advantages to mediation can be numerous.  By definition, any mediated settlement must be at the express consent of each side.  Thus any result is presumably more to the liking of the parties than in a case where a party is adjudged to have “won”.  For this reason mediation can be less adversarial. It is also a powerful tool to ensure that pre-existing relationships remain intact. Employer/employee relationships, for example, may be better handled through mediation. Mediations can lead to faster settlements than arbitration, and it gives the parties a high degree of control. While the mediation itself is private, the parties can and often do seek legal advice about their position, so that they can come to the mediation better informed. The relatively informal process may also put the parties at ease and remove the anxiety or seriousness of courtroom proceedings.  They can also be “paused” and resumed at a later date if the parties require additional time to consider the circumstances.

Issues with Mediation

Mediation may not be appropriate in all situations. A key factor that may hamper the effectiveness of a mediation is the status of the relationship of the parties and their willingness to negotiate. “Failed” mediations may leave parties dissatisfied and may feel like time and money has been wasted.  If the dispute has not been satisfactorily resolved, the parties may feel the need to move to arbitration or litigation.  Finally, some cases, such as where one party has a high degree of power, control, or expertise versus the other, may not be appropriate for mediation.

Mediation versus Arbitration: Conclusions

Both mediation and arbitration can be effective tools for resolving a dispute outside of the court system. Arbitration is distinctly more formal and presupposes that there is an unresolvable matter on which the parties would like to have a judgment from a neutral third party. Mediation is consensus-based and can only lead to mutually-agreed settlements, or a standstill. Each have distinct advantages and the potential to lead to cost- and time-savings versus traditional litigation. If you find yourself in the midst of an important dispute,  consider whether either arbitration or litigation may be an appropriate course of action before you jump to the conclusion that a lawsuit is the only option. 

For more information about mediation, arbitration, and other forms of alternative dispute resolution, please visit ADR Canada, or Cornell's Legal Information Institute.

About the Author

Dan Lawlor is a Mediate2go Blogger focused on estates and commercial dispute resolution. Dan is a graduate of McGill University's Faculty of Law with interests in conflict resolution, business law and writing. He played an important role as a director with Mediation at McGill, building connections with the community to improve outreach. Currently he is a lawyer with Campbell Mihailovich Uggenti LLP in Hamilton, Ontario. Dan loves team sports, reading, and traveling. 

Should I stay or should I go? When to Choose Therapy and When to Divorce

Mediate2go: When to Choose Therapy, When to Divorce (Family Mediation)

How do I know if I should be in couples therapy, or on the road to separation, divorce and mediation

Do you wonder if the grass is greener when the waters get rough in your marriage?  It’s normal in any relationship to have those “I don’t like you right now” thoughts (hopefully rephrased if spoken aloud). Conflict is inevitable, and very healthy if it is resolved. But when those thoughts turn into more serious questioning about whether you should stay or go, it’s time to do some serious thinking, because having, and voicing, those thoughts can further threaten a fragile partnership.  

It may be time to stop second-guessing your commitment, and bravely face the question: Should I stay or should I go?  

In part, the answer differs depending on what stage you’re in.

Early stage relationships:  

If, in the first few months to a year of being with someone, your ‘gut’ doesn’t feel right or there is a lot of unhealthy conflict, there is good reason to simply go your separate ways. It probably won’t get much better than that early period where we put our best face forward.

But ending even a short-term relationship can be difficult. We wrap so much of our self-esteem in whether a relationship lasts or not. At this beginning stage, though, it’s important to realize that you’re both looking for a good match. It’s not personal. Just because you initially like someone or have had a good email exchange doesn’t mean you’re a good match. Just because you’re not a good match doesn’t mean there’s anything wrong with either of you. Stop trying to fit the square peg into the round hole and move forward knowing there’s a better match out there for both of you. There would be less divorce if people listened to their early doubts and avoided getting stuck in something that doesn’t feel good right out of the gate.

Established Relationships

You’ve been together for a while, and you realize you’re having thoughts about leaving the relationship. Every situation is unique, but let’s talk generally about good and bad reasons to stay or leave.

Mediate2go: When to Choose Therapy, When to Divorce (Family Mediation)

BAD REASONS TO STAY - Choose Mediation

• (Only) For the kids.   While being a parent might mean putting some extra effort into trying to resolve things before you throw in the towel, it’s never a good idea to stay only for the children.  Children need happy parents who aren’t in constant destructive conflict. I believe that having parents in negative conflict affects children more seriously than divorce or separation.
• (Only) Money.  I get that there are practicalities involved, but know that your community is abundant with options for assistance. 
• Fear of being alone.  If you have been dependent on your partner, a therapist can help you learn to address these fears.  Amazing things can happen when you kick fear out of the picture. Also, be sure to read about destructive relationships and building confidence.
• To buffer the children from the other parent.  If you are in an abusive relationship, please seek support.  Staying out of fear that your partner will do more harm to the children if you leave is not healthy thinking. 
• You don’t want to hurt your partner (leaving is hard). Sympathy is never a good reason to stay. You both deserve better than that. No, leaving a marriage isn’t easy, but that’s no reason to put off being happy.
• (Only) Because you love them, or they love you.  If that’s the only thing holding you together…if you’re in pain and everything else says it’s not working, then love is just not enough.

GOOD REASONS TO LEAVE - Choose Mediation

When there is something you fundamentally need that the relationship can’t provide.  Following are some examples of this.

• Disrespect/Abuse. You or your children are being hurt.  Abuse is a recurring pattern of hurtful or controlling behaviours that create a power imbalance. Safety comes first. Read this about unhealthy relationships.
• Addiction.  If you have a partner who is in an addiction and not seeking treatment or taking responsibility.
• Dishonesty and secrecy.  If you don’t know whether you are getting the truth or not, it’s impossible (and perhaps unwise) to try to build trust.
• Infidelity.   While good people can make bad mistakes, and infidelity can be worked through with a therapist’s help, infidelity can also indicate a lack of empathy, or an inability to draw appropriate boundaries of safety around the relationship. 
• You’ve lost the desire to be together and you don’t want it back.  If you or your partner already have one foot out the door, it’s best to recognize it and be honest about it.    

BAD REASONS TO LEAVE - Choose Therapy

• You’re unhappy.  Are you blaming your relationship for your personal unhappiness or depression? Sometimes our partners and relationships take on an ugly hue when we’re not in our own personal happy place. Try using a therapist to learn healthy thinking patterns, and see how that changes the picture.
• Your relationship doesn’t feel the same as it used to.  Marriages go through stages, and it’s natural for that early passionate intensity to lessen with time. Be your best self, and communicate clearly about what you feel and need.
• You argue a lot. Conflict can be made healthier, and conflict resolution can be taught. Habits can be changed, and patterns can be altered. Clarity about whether to leave or stay can also be assisted by my “basket” theory:  put a relationship problem into a basket in order to determine how to handle them. Read about destructive relationships and unhealthy relationships.
• Your partner has changed (or you have, and they refuse to).  Some people change, and some don’t. Definitely, people change when they want to, not when it suits us. Try seeing a therapist if you both want to better understand and connect with each other through personal change.
• You’ve stopped trying.  Have you stopped feeding your relationship? Are you expecting changes from your partner and ignoring what you can do to improve the situation? Try increasing your own effort (and your empathy) to be loving, and see what happens.
• Your partner doesn’t know what you need.  Are you communicating your unhappiness? Ending a relationship without clearly letting your partner know what you need may be less than fair. Ask for what you need.
• Hurtful things have happened.  People make mistakes, and with effort, empathy, taking responsibility and forgiveness, wrongs can be righted and the past can move farther away. 

GOOD REASONS TO STAY - Choose Therapy

Both parties are ready to use a therapist and work hard to make things better.  In spite of issues X, Y and Z, you both desperately want to be together and are willing to work at it in therapy and make personal changes. I have worked with a lot of couples in the last twenty years, and I can’t guess outcomes. I have been very surprised by couples who have made me wonder why on earth they were together, and then suddenly something shifts and the space is created for a different way of being together. If you both want it to work, and you both have the energy to commit to doing something differently, then ANYTHING is possible.

Ultimately, no one can tell you how long to stay in a relationship that feels uncomfortable.  This is intended only as a guideline to clarify a muddy picture. Remember that if you decide to stay, therapy can assist in building intimacy and communication skills.  If you decide to leave, mediation can be useful when negotiations fall apart.

About the Author: Lynda Martens is the Wabisabi Therapist and a contributor to the Mediate to Go Blog. Please read her other contributions by searching on this page for Lynda Martens.

Feeling uncomfortable? Set a boundary!

Mediate2go.com: Feeling Uncomfortable? Set a Boundary!

Feeling uncomfortable? Set a boundary!

“Good fences make good neighbors”-Robert Frost

What is a boundary? Similar to boundaries separating pieces of property, regions and countries, boundaries exist in our interpersonal relationships. Boundaries are emotional and/or physical spaces between you and someone else, or between you and several people at once. Generally speaking, they are learned during childhood through modeling in relationships, and later in life through friendships.

Human relations research has found that tensions, which may be expressed with boundaries, exist in all of our relationships. Dialectical theory “says relational development occurs in conjunction with various tensions that exist in all relationships, particularly connectedness versus autonomy, predictability versus novelty, and openness versus closedness.[i]”  This means that all relationships are dynamic, and require a constant balance, whatever that looks like depending on the people involved, the context and community.

Relationship Boundary Types

As relationships change and develop, the levels of these tensions change.[ii]  

New Friendship:

If you meet a new friend, you might need to decide whether you will forego autonomy of doing what you want alone, or investing time with the other person (connectedness).[iii]

Intimate Relationship:

The tensions change within intimate relationships as well, couples might struggle to maintain their individual identity, yet in many ways, uniting their identity with another person.[iv]

Workplace Relationship:

This might happen in the workplace too: say that you are going though something personal in your life, although you might be friendly with colleagues, you might not want to be too open with them in order to protect your privacy, thus choosing closedness versus openness in the situation. This might be the case as well for managers, constantly trying to balance closeness with their team through openness, yet a sense of objectivity and distance in order to effectively make business decisions.

Types of Boundaries and Characteristics:

▪       Personal: Values, Needs, Feelings, Thoughts, etc.

▪       Organizational: Values, Org. Culture(s), Roles, Expectations, etc.

▪       Legal: Laws, Regulations, Court decisions, etc.

▪       Community: Values, Cultures, Expectations


Boundaries are normal and healthy, but they can lead to discomfort.

When we do not know what the boundaries should be, we might be shocked or uncomfortable when a boundary is expressed by someone else. Maybe someone expresses anger with you after you made a joke in the workplace. Maybe someone felt hurt when you asked to change the parameters of a relationship (say breaking up with a friend or a new boyfriend/girlfriend)? Maybe someone did something that left you feeling uncomfortable, and whether you reacted or not, a boundary needed to be expressed.

Dealing with Discomfort.

When you think of the discomfort caused by boundaries, remember the benefits. First of all, if you feel uncomfortable about asserting a boundary with someone, or someone asserting a boundary with you, the feeling will be temporary.

Boundaries can help us.

Setting boundaries can help us feel a sense of predictability and freedom. It can increase our self-esteem and confidence. We can feel happier and safer in our relationships with others. We learn to develop ourselves personally and professionally through learning to respect our boundaries, and the boundaries of others. We can prevent unnecessary conflict that might lead to uncomfortable tensions. We can also manage conflict through setting boundaries, say we need to move on, and leave a relationship behind us. Sometimes setting a boundary might be the only way to resolve a conflict.

How to set a boundary?

If you feel uncomfortable and think you are in a destructive relationship, be sure to read about it here, and learn about fights gone bad.

Labels: bad-relationships, boundaries, Unhealthy-Relationships,

---

[i] S Beebe, S Beebe, M Redmond, T Geerinck. Interpersonal Communication: Relating to Others, Fifth Canadian Edition. Toronto: Pearson at page 282.

[ii] Ibid.

[iii] Ibid.

[iv] Ibid.

Self-leadership in Conflict - Leadership Styles

Self-Leadership in Conflict - Leadership Styles

Be the change that you want to see in the world. ― Mahatma Gandhi

Self-leadership in Conflict - Leadership Styles

 Essential advice on how to manage and reduce harmful conflict at home and at work. 

Here is what we think about self-leadership in conflict. Also known as taking self-responsibility in conflict, self-leadership is about taking leadership across situations to manage your own reaction to issues and conflict, and also help others manage their issues. While it might not be considered a style on its own, it might have a significant impact on your situation. As mediators and conflict coaches, we recommend learning about self-leadership because we believe everyone is responsible for their own behaviour in situations. We always have a choice in how we react, and this can have a major impact on the dynamics and relationships around us.

Self-leadership in conflict assumes the following characteristics:

• We are responsible for what we bring to a situation (our thoughts, which impact how we feel. If we change our thoughts, we can modify how we feel about situations),
• We should give people the "benefit of the doubt" (assume the best in people),
• We always have a choice in how we react to a situation,
• Our behaviour can impact those around us,
• We should take responsibility to make a situation better.

Self-leadership in Conflict - Leadership Styles

We use the acronym LEADER.

L - Limits and boundaries: 

We all have limits, which are "lines in the sand" that shouldn't be passed by those around us. Sometimes they differ based on the relationship. What we share with our intimate partner should not always be shared with family, friends and colleagues. Boundaries are based on what we and others are comfortable with. If someone is not comfortable with certain things, then we must respect their boundaries as we expect the same in return. If you feel uncomfortable about something, it is likely that someone has not respected one of your limits. They might not be aware or your limits, so it is your responsibility to state your boundaries in the situation. This is an essential part of self responsibility in conflict. To better know our limits, which require boundaries, we should be aware of triggers. Read our blog on Boundaries.

E - Explore Triggers: 

Have you found yourself react strongly to particular statements made by friends or family. Maybe you become defensive about particular subjects, or "shut down" around others in particular situations. This means that something has triggered something within you. No, the other person is not responsible for your reaction (see below). rather, something from the last is likely leading you to react in such a strong way. We all have a history. How did we handle conflict and confrontation in the past? How did we react to the anger and emotions of others? What do we associate with the present triggering behaviour, whether it be from childhood or something more recent. Although mediators are not to help clients analyze this, we must take responsibility for the triggers that seem to push us to react in strong ways. If we work on understanding these, it might be easier to react in a calm manner, proportional to the situation. 

A - Assumptions and perception checks: 

How often do we assume that someone else intended to do something negatively, and then subsequently find out they had no negative intention whatsoever. Psychologically it's easier for us to assume others had a negative intention, while we, in the same situation, would have had a positive intention- see fundamental attribution error. Checking out the perception of others around us requires constant effort, but can go a long way in helping you prevent and manage conflict. Ask the person, when you said this, what did you mean by it? Or, when this was said, this was my perception. How did you perceive the situation? You will likely feel a sense of relief most of the time, and a sense of resolution, that the person didn't have a negative intention.

D - Direct discussion: 

You might feel a sense of relief to "vent" to someone about the behaviour of someone else. It might even feel right to you. Maybe you want to feel more emotionally in control before you actually have a discussion with them. While this could be helpful, why don't you have a direct discussion with the person who did something that you felt uncomfortable about? Talking to others might reinforce your negative assumptions about someone else, and make the discussion even more challenging when you finally decide to have it. Or worse, you might, as a result, decide not to talk to the person, and let the relationship continue to deteriorate. Many times, it's with it to at least try to have a direct discussion with the person, especially when you are likely to have interactions in the future. Here are some tips to structure your constructive confrontation.

E - Emotional health: 

If you are emotionally happy, you will be better able to handle challenges in your day, including possible communication issues with others. In fact, you will likely prevent many issues from emerging in the first place. When we feel happy and healthy, other people are likely to feel at ease around us, and more Likely to interpret us in the way we intend them to. For example, it's easier for a colleague to assume that everything is okay in your relationship together if he interaction is positive. On the other hand, if you are stressed out, and angry about something, they might mistakenly assume that the negative emotion is directed at them. Thus, creating miscommunication and possible conflict. In the same way, if we are happier, when someone at work seems to be negative or short around us, we are more likely to assume it's not about us, and they are likely just having a bad day. Emotional health is also impacted by physical health. See our blog about emotional health, 

R- Reaction control: 

We are responsible for our reactions and our feelings. It might seem hard to believe, but others do not control our feelings. We are responsible for how we think, which then impacts and leads to how we feel. While it's understand to feel impacted by the behaviour of someone else, the way we react is what we do have control over. Will you "stoop to their level" or "take the high road", meaning, will you react in a way that you respect and expect from others, or will you simply retaliate and act with a sense of revenge. Ask yourself what are the consequences of both approaches. I terms of self leadership in conflict resolution, acting with vengeance leads to conflict escalation, and rarely will get you what you want, being, resolution to the situation.

So next time you feel uncomfortable, hurt or angry about something, you hear someone gossiping at work, or you simply want to be a force of positive change for others in your life, be a LEADER.

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