Mediation

There are numbers of reason why parties choose mediation. It can derive from a contractual agreement that stipulate parties to require mediation in dispute. The same agreement might state the more cost-effectiveness of mediation as an option. Parties may also be advised by legal advisers that parties undergo mediation before they commence litigation. Countries require parties to undergo ADR, mediation, before trial, ‘in these cases, courts proceedings are stayed to await the outcome of mediation. If it’s unsuccessful, then the parties will resume their court action’.

Mediation is essentially an alternative form of negotiation; additionally the mediator plays a more active role in comparison to the neutral third parties in the negotiation process. Mediation is a voluntary, and its informal and private and non-binding process. In some cases though mediation can have binding effect, for example, if the parties agree that if they cannot resolve the dispute, the mediator can make a legally binding decision on the issue. The mediator does this by drafting a contractual agreement. Meiners explains ‘although the mediator does not make a decision, if the dispute is successful, the mediator helps draft an agreement between the parties that settles the dispute. The agreement is an enforceable contract and, therefore settles the matter’.

It’s essential to pinpoint the advantage and disadvantage of mediation to emphasize its significance.

Mediation process involves fewer procedural rules in comparison to litigation or court room sittings. Mediation proceedings can be tailored to fit the needs of the parties, the mediator can be ask to play a diplomatic role or get more involved by expressing an opin...

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...ty and the absence of a third party, enforcer, makes it disadvantageous. The mediator can only help parties reach a decision not make decision for them , without a deadline or an enforcer that might impose sanctions’ if parties fail to negotiate in good faith they may be les willing to give concessions or honestly reach a settlement this may slow down or even halt the process.

2.1.3. Arbitration

The other major form of ADR process is arbitration. Arbitration in its simplest from can be defined as a process for the resolution of disputes outside court. The definition does not in full define arbitration. Scholars have pointed out that there’s no definite legal definition for arbitration. Scholars have defined arbitration in various publications. Jarrosson in his detailed analysis defines arbitration ‘as the institution by which a third party decides on a