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Pros & Cons of Arbitration
- Pro: Arbitration offers the finality and legally binding outcome of a trial, but is typically more affordable, faster and less complicated than a court proceeding.
- Con: The scope of discovery can be limited as key information such as depositions, requests for documents, interrogatories, medical examinations, and inspections of property are sometimes curtailed.
- Pro: Arbitration is flexible. The parties have a say in the structure, process, and setting of the arbitration.
- Con: Arbitration clauses may offer an unfair advantage to bigger, wealthier parties (employers or large corporations, for instance) when challenged by an employee or consumer with fewer resources.
- Pro: Unlike court proceedings, which are open to public scrutiny, parties can agree to keep the arbitration private and confidential.
Pros & Cons of Mediation
- Pro: The parties retain control of the process, and are able to make suggestions and reach a mutually beneficial decision.
- Con: Mediation requires that both parties agree to follow through on the proposed solution. The lack of binding resolution means there is no guarantee that both parties will abide by any decisions made.
- Pro: Mediation makes it easier to preserve the relationship between parties. Both parties may be satisfied and benefit from the final decision.
- Con: The perceptions, biases, and attitudes of the mediator can inadvertently impact the decision of the disputing parties.
- Pro: The mediation process is extremely flexible. Participants can choose the mediator, time, place, and structure of the proceedings.
Source: Arbitration vs Mediation vs Conciliation: Differences, Pros and Cons, Applications (Kompass, Aug. 4, 2022)
Understanding Mediation & Conflict Resolution
What is Mediation and Arbitration? (Harvard Law School Program on Negotiation, Jan. 16, 2023)
“What’s the difference between mediation and arbitration? In a mediation process, a neutral, trained mediator works to help disputants come to a consensus on their own. In arbitration, a neutral, trained arbitrator serves as a judge who is responsible for resolving the dispute. Mediation is appealing because it allows parties to reach a collaborative settlement, but it could end in impasse. Arbitration, on the other hand, can wrap up a dispute conclusively, but it doesn’t give disputants much say in the outcome.”
Mediation and the Conflict Resolution Process (Harvard Law School Program on Negotiation, Nov. 21, 2022)
“It’s often the case that when two people or organizations try to resolve a dispute by determining who is right, they get stuck. That’s why so many disputes end up in court. There is a better way to resolve your dispute: mediation by hiring an expert mediator who focuses not on rights but on interests—the needs, desires, or concerns that underlie each side’s positions. If someone asks you why a dispute is important to you, your answer will reveal your interests.”
Arbitration vs. Litigation: What's the Difference? (The Balance, Oct. 26, 2021)
“Litigation is an ancient process that involves determining issues through a court with a judge or jury. Arbitration, on the other hand, involves two parties in a dispute who agree to work with a neutral third party in an attempt to resolve the dispute. Arbitration is used in place of civil litigation involving two parties.”
Common Ways to Resolve Disputes and Deadlocks in a 50/50 Business (The National Law Review, Jan. 26, 2021)
When companies are owned equally, resolving conflicts that have gotten stuck in standoff mode can prove difficult. In addition to arbitration and mediation, business owners can try an independent, third-party swing vote, exercising put/call rights, or offering equity to the other owner. Finally, owners can decide to dissolve the business completely.
Alternative Dispute Resolution
What is Med-Arb? (Harvard Law School Program on Negotiation, Sep. 19, 2023)
“Med-arb” refers to to the combined process of mediation and arbitration. First, both parties agree to the terms of the resolution – because arbitration may be involved in some way, the agreement is binding, unlike in most mediations. Mediation is attempted, but if an impasse is reached, the mediator can assume the role of an arbitrator.
An Examination of Institutional Arb-Med-Arb Protocols and Practices (Dispute Resolution Journal, 2022) E
“The combination of mediation and arbitration can take many forms and go by many names. The form addressed here—the incorporation of a mediation window into the arbitral process and the recording of any negotiated settlement as an arbitral award—is most commonly referred to by its procedural sequence, Arb-Med-Arb. If the parties are successful in resolving the entire dispute during the mediation window, the arbitration is reconvened simply to enter the negotiated settlement as a consent award. If the parties are unsuccessful, or successful only in part, then the arbitration is resumed to resolve remaining issues and to issue an arbitral decision and award. This hybrid procedure—which “beg[an] to make an appearance” a decade ago—has come to play an increasingly important role in alternative dispute resolution (“ADR”).”
6 Advantages of Alternative Dispute Resolution (Breakthrough Mediation, Jan. 26, 2021)
Alternative dispute resolution, most often done through arbitration or mediation, offers many benefits, including; faster resolution, lower costs more flexibility, privacy, no bias, and less friction.
Arbitration & Mediation Issues
How to Prepare for a Real Estate Arbitration? (ADR Times, Feb. 14, 2022)
Alternative dispute resolution can be useful in many phases of the home buying and selling process, but especially during and after closing. Sometimes issues arise that cannot be quickly resolved – often issues or misunderstandings with the inspection and fixes that may or may not follow. Be sure to consult not only the rules in your state but also the National Association of REALTORS® Code of Ethics.
Remote Work is Still a Focus of Mediation and Arbitration Cases (Mediate.com, Jan. 3, 2023)
“Employers and alternative dispute resolution providers face new challenges in 2023 from the virtual working world. Remote workers, new statutory provisions, and a major overtime case before the US Supreme Court highlight the new year in employment law.”
4 Common Problems and Challenges for Mediators (Pollack Peacebuilding Systems, Apr. 2, 2021)
Not everyone put in a position of mediation has professional experience as a mediator – even if one does, the personal nature of the work allows for things like lack of confidence to sneak in. In addition to lack of confidence, make sure to watch also retain an air of authority over the situation, and accept any communication training available to you.
Mediation Ethics: From Theory to Practice (Conflict Resolution Quarterly, 2021) E
“For too long within the mediation field, there has been confusion on how the foundational principles of mediator neutrality, impartiality, and self-determination work together to bring about a fair outcome. Referring to Silbey and Merry's framework (2001), the authors explain how mediators claim authority in how they present themselves and the mediation process to the parties in the pre-mediation stage, in controlling each stage of the in controlling each stage of the mediation process, and in exerting control, over the substantive issues discussed in mediation.”
Association for Conflict Resolution
Center for Alternative Dispute Resolution
Code of Ethics and Arbitration Manual (National Association of REALTORS®)
Resources from NAR's Mediation Training Seminars (National Association of REALTORS®)
National Association for Community Mediation
Professional Standards Training & Mediation Resources Database (National Association of REALTORS®)
American Arbitration Association®
Books, eBooks & Other Resources
The following eBooks and digital audiobooks are available to NAR members:
Advanced Facilitation Strategies (eBook)
The Anatomy of Peace (eBook)
The Art of Constructive Confrontation (eBook)
Breakthrough Business Negotiation (eBook)
Conflict Resolution (eBook)
The Coward's Guide to Conflict (Audiobook)
Facilitating With Ease! (eBook)
Good for You, Great for Me (eBook, Audiobook)
The Handbook of Dispute Resolution (eBook)
Have a Nice Conflict (eBook)
Improvisational Negotiation (eBook)
Legal Negotiation (eBook, Audiobook)
The Negotiation Book (eBook, Audiobook)
Negotiating Success (eBook)
Negotiating the Impossible (eBook)
Resolving Conflicts at Work (eBook)
Settling the Unsettling (eBook)
The Triangle of Truth (eBook)
Books, Videos, Research Reports & More
As a member benefit, the following resources and more are available for loan through the NAR Library. Items will be mailed directly to you or made available for pickup at the REALTOR® Building in Chicago.
Disagreements, Disputes, and All-Out War: 3 Simple Steps for Dealing with Any Kind of Conflict (New York, NY: Amacom, 2008) HD 42 SC03
Handling Conflict (Cincinnati, OH: South-Western, 2002) HD 42 G65
The Mediator's Handbook: Advance Practice Guide for Civil Litigation (Cincinnati, OH: South-Western, 2002) KF 9084 C77
Leaders Working Together: Five Steps to Conflict Resolution (Washington, DC: American Society of Association Executives, 2001) HF 294 A1
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