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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: Kompass, Dec. 21, 2020
Understanding Mediation & Conflict Resolution
Mediation and the Conflict Resolution Process (Harvard Law School Program on Negotiation, Nov. 22, 2021)
“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, Nov. 8, 2021)
“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.
Virtual ADR: Life After Lockdown (JD Supra, May 6, 2021)
“There was little doubt among those at this comprehensive webinar that “virtual” is here to stay, both because it works and because it is cost-effective. It appears to be significantly more popular among mediation users than for arbitrations – although there may be room for hybrid usage in the latter, both as a matter of efficiency and cost. Ultimately it will be our clients that dictate the directions we will take. But one thing is certain: our ADR community can be very proud of what has been accomplished over this most challenging past year, and we can be equally confident that, as we begin in earnest to look ahead to the Fall, all of us working together will be ready to meet the challenge.”
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
The Year in Alternative Dispute Resolution (JD Supra, Jan. 3, 2022)
From the New York Supreme Court to the English High Court to cross-border resolution between the United States and various Latin American countries, alternative dispute resolution was a global issues in 2021. Spanning family law, technology law, personal injury law and EEOC mediation, this article round-up provides information on any type of ADR you might be interested in.
Virtual Mediation in Today’s World: A Pandemic Success Story (JD Supra, Nov. 19, 2021)
“Added expense and delay are in no one’s best interests, especially now. The combination of court backlogs and the failure of parties to a dispute to seek alternatives to resolve their conflict is inhibiting their economic and personal recoveries, and is creating additional stressors. Through mediation, parties have the opportunity to resolve their dispute in a rational, reliable, participatory and cost-effective process that will allow them to successfully resume their business and personal lives.”
New Hampshire Landlords, Tenants Have a New Way to Resolve Housing Disputes (New Hampshire Business Review, Nov. 10, 2021)
“Tenants and landlords can now request to use a free mediation process, where a neutral third party can help to come up with a solution to their underlying disagreements before an eviction case is filed. According to the court’s website, “if an eviction notice or a demand for rent has been issued, you may wish to request mediation as soon as possible. Either side of the dispute can request mediation, but it requires cooperation from both parties involved.”
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.
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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