I want to refer my case to mediation / arbitration
What is mediation?
Mediation is a form of dispute resolution in which an independent person (the mediator) aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and the content of that agreement (if any), is determined by the parties themselves, rather than it being imposed by the mediator.
What is arbitration?
Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator (the arbitrator) whose decision the parties to the dispute have agreed, and which legislation has decreed, will be final and binding.
When you want to make use of mediation or arbitration, please think about the following:
Have you considered all the options?
Before going into an adjudicative process (such arbitration or litigation), it may be wise to first try mediation. A mediator is skilled at finding common ground between disputing parties, and may assist you in getting a settlement. This is usually much less expensive than either arbitration or litigation, and often allows you to retain your relationship with the other party.
This free online tool may assist you in understanding your options better.
Do you have an agreement with the other party to the dispute?
Both mediation and arbitration are consensual processes. This means that you can only use these processes if you have an agreement with the other party to use them
Often contracts stipulate that they have to be used, and you can rely on such a clause to use these processes. If not, you may need to talk to the other party about using mediation and or arbitration.
Making use of a mediation & arbitration Service Provider
Though you are free to approach a mediator / arbitrator directly, there are a number of benefits to using a DiSAC Accredited Service Provider [ASP] when referring a case:
- The ASP acts as the administrative manager of the case, and will ensure that all logistical arrangements are taken care of
- The ASP has a set of mediation and arbitration rules that will assist in making the process clear and simple
- The ASP will assist you in selecting an accredited mediator / arbitrator that is suitable to your dispute
- The ASP normally has fee arrangements in place with the mediators / arbitrators. This ensures greater predictability, so that you will not be surprised by the costs of the mediator / arbitrator at the end of the process
- The ASP will provide oversight over the practice of te mediator / arbitrator, and will help to address any issues you may have with the mediator / arbitrator
- The ASP will charge you a fee. However if no ASP is appointed, the mediator / arbitrator will also charge you for the time he/she spends on the administrative and logistical arrangements of the case. This may well be substantially more than the fees of the ASP.
Selecting the mediator / arbitrator
Normally the mediator / arbitrator is selected by agreement between the parties. Where they struggle to agree on this, the ASP will assist in making a selection.
When selecting a mediator / arbitrator, please ensure that:
- The mediator / arbitrator is accredited with DiSAC
- You have a clear understanding of the fees that the person will charge.