Fifty years ago when a dispute occurred people had little option but to drag their children through a long protracted court case to establish custody rights, or spent 15 years of their lives nursing hate, bitterness and revenge for ills inflicted upon them.
But over the years our consciousness has changed and we now seek other, more peaceful alternatives to dispute resolution.
The growing field of ADR –Alternative Dispute Resolution – has provided us with options about how we can get some kind of peace about a situation that soured. The most common alternatives to court nowadays are Mediation and Arbitration.
If you take a dispute to Arbitration, the Arbitrator makes the decision about whose rights will be upheld. The Arbitration process is governed under legislation (Arbitration Act 1996) and allows for the principle of Natural Justice.
Natural Justice refers to two important areas of law: 1) That the person making the decision about the outcome of the dispute will be fair and impartial and 2) that every person has a right to have their case fully heard.
There are many types of Mediation, but in general Mediation offers a more collaborative approach to dispute resolution where the process is based on compromise rather than somebody winning or losing.
So, where Arbitration is rights-based (one parties’ rights will be upheld), Mediation is interests-based where the interests around the dispute are explored and the solution often more creative.
Many types of disputes can be resolved in Mediation, such as Employment or Marital disputes, as well as Tenancy or property. Many of these types of disputes need a solution without destruction of the relationship between the parties, so an interests-based approach is much more preferable to an adversarial one where one party loses or wins.
The Mediator encourages the parties to communicate and works with them to sort out the issues.
Mediation isn’t governed by legislation, and the Mediator remains neutral with little or no input into the outcome whereas in Arbitration, the Arbitrator is the decision maker.
Anything that happens in Mediation is confidential, and an Arbitration outcome is also confidential.
Mediation and Arbitration are fast becoming the preferred method of dispute resolution as opposed to Court proceedings because of the many benefits obtained from these processes: 1) Court proceedings are generally adversarial –usually somebody has to win and somebody has to lose 2) Court proceedings are open to the public and the media whereas Mediation and Arbitration are private 3) Litigation can mean a lot of expense and a lengthy process whereas Mediation and Arbitration are quick and either free or reasonably priced.
There are now many instances where legislation encourages or directs people to Mediation and/or Arbitration before litigation rather than going to Court.
There will always be those who want to take their issues to Court for their own reasons. But it makes sense that for the most part, an integrative approach to resolving our disputes works better in a world where most people are seeking more kindness, compassion and understanding from each other to ensure a better existence.