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Medication Arbitration Law | Free Medical Law Essay

 

MEDIATION VS. ARBITRATION: A CRITICAL ANALYSIS TO DETERMINE WHICH IS MOST EFFECTIVE IN RESOLVING COMMERICAL DISPUTES.

Purpose

When faced with a legal dispute, commercial parties have several recourses available to resolve their disagreement. Although court action is the most traditional resort, arbitration and mediation have gained popularity as viable alternatives. Arbitration involves the legally-binding settlement of a dispute outside the legal system by an independent party. While mediation also involves an independent third party, that party is normally a facilitator in reaching a consensus and the opinion of the third party is not inflicted on the clashing entities. As arbitration can be a more definitive way of resolving conflicts, it is the most widely used form of dispute settlement amongst commercial bodies. Whether a dispute it settled by arbitration or mediation largely depends on the nature of the disagreement, the characteristics and desires of the parties involved and the viability of other methods of dispute settlement. This paper considers the use of mediation and arbitration in commercial disputes involving one or more UK parties and explores the effectiveness of each form of dispute management.

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Background

In English law, arbitration was formally codified in the Arbitration Act of 1697. Since this time, commercial parties and other entities have found arbitration to be advantageous for several reasons. Perhaps the most compelling case for arbitration in lieu of court action is that arbitration is often cheaper. Indeed, it can be more cost effective for both parties to abide by the findings of one independent party than to endure the costs of pursing lengthy legal action. Arbitration is also often cheaper than court action simply because it also takes less time and administrative effort than court do proceedings. In addition, arbitration is perhaps most useful in disputes of a highly technical or specialised nature. In such cases, the parties can appoint arbitrators that have a greater level of knowledge and experience in the given subject matter than would the parties involved in a court case, a point that may not only save time and money for both parties, but may also lead to a more appropriate settlement. Finally, arbitration can be useful for commercial parties in particular in that it also allows the parties to keep the details of the dispute private. Court action, particularly when it involves well-known commercial brands, has the potential to be exploited by the media.

Still, arbitration is clearly not always the panacea it would appear to be. When independent arbitration is funded by both parties, there are, debatably, greater loopholes for certain types of parties to exploit the arbitration process. In some cases, arbitration is not possible simply because the parties can not mutually agree this course of action. In other cases where the dispute involves serious legal breaches, such as certain forms of crime, arbitration is not a legally viable option.

Mediation can perhaps be considered a more flexible route than arbitration. Although there are several types of mediation, all involve both parties consenting to a mutually agreeable settlement facilitated by the intervention of a third party. Whether parties agree to mediation can be highly dependent on the strength of parties’ case and their willingness to go to court. Mediation can also be considered more flexible than arbitration because the former can be used to prevent or intervene in conflicts before they progress. In this sense, mediation can also be used as a form of dispute prevention. Mediation also differs from arbitration in that in that in the former, both parties negotiate a settlement as opposed to having one imposed by a third party. However, as with arbitration, parties may seek mediation in an effort to lower the costs associated with court action. As previously mentioned, mediation is often less adversarial, a fact that may also protect the reputations and privacy of the parties involved. It can also open up communication between parties and lead the parties to a conclusion that is both fair and mutually beneficial. Because mediation is more highly dependent on the co-operation of both parties, however, it can be a lengthy and frustrating process. Despite this, it has recently become a more popular form of dispute settlements as commercial entities look for options outside the traditional methods of dispute settlement.

Essay Marking

Hypothesis

Dore notes that arbitration is a more popular form of dispute management than mediation and that, in some cases parties are encouraged to try mediation prior to resorting to arbitration. Thus, it would appear that arbitration is a more effective form of dispute settlement as it consulted once mediation has been exhausted. Still others, such as Hill note the rise of various forms of mediation that have been proven highly successful in scenarios ranging from domestic disagreements to commercial disputes. In some cases, mediation has proven so successful in opening communication between parties that there has been talk of making it a mandatory step prior to court action. The hypothesis therefore, is that the viability of either arbitration or mediation as an option for settling commercial dispute will depend highly on the particular facts of the case. As mediation is often used as a precursor to arbitration, it may also be that the dispute options work optimally when used together.

Methodology

In order to pursue the given hypothesis in depth, this paper will investigate the use of arbitration and mediation in several commercial disputes including. The source list will include cases found in Westlaw, LexisNexis, Findlaw legal resources as well as information found in legal articles and law books. It will also draw upon information found in leading arbitration and mediation journals such as Arbitration International, the Dispute Resolution Journal. The essay will also involve a literature review of research relating to arbitration and mediation. It will consider the advantages and disadvantages of mediation and arbitration as they have related to several cases and will conclude with a consideration of the possible scenarios in which arbitration might be prove a more viable option to mediation and vice versa.

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