BUSINESS LAW

MADIATION
The goal of mediation is to amicably resolve a dispute through the efforts of the parties.
The role of the mediator is to utilize patience, persuasion and people skills to facilitate the
dialogue between the parties in order to reach settlement. The mediator does not have the
authority to render a decision, the parties are not compelled to reach an agreement. Any party is
free to leave the mediation at any time.
Each mediator has his or her style and most effective mediators alter their approach to fit
the unique needs and personalities of a given dispute. Facilitative mediators rely on people skills
and persuasion to guide the parties toward a realm of agreement. Evaluative mediators rely more
on experience and subject matter expertise to predict possible outcomes. Each style can be used
effectively and many mediators utilize a combination of both styles as the needs of the conflict
dictate.
The mediation process itself involves a series of joint sessions and private caucuses. The
mediator will make the determination of when each type of meeting will be conducted. Typically
the mediation will start with a joint session that includes all of the participants to the dispute and
then the groups will be divided for private caucuses. The mediator will shuttle back and forth
between the parties until either impasse or a settlement is reached. Impasse is declared when one
or more parties or the neutral determines that continued negotiations would be fruitless at this
time. If a settlement is reached its terms should be written down and signed by the parties
making it enforceable as if it were a contract.
Mediation is a very flexible process that can be effectively used at any time during the
course of the dispute. Because the process is non-adversarial, there are numerous benefits over
trial in addition to saving time and money. Mediation allows the parties to maintain relationships
and offers the greatest opportunity for creative problem solving. Mediation sessions commonly
last from a few hours to one day.

CONCILIATION
Conciliation is a process through which two or more parties may explore and reach a
negotiated solution to their conflict with the help of a third neutral and disinterested party, the
conciliator.
The conciliation process finds its most solid foundation and eventual success on the will
of the parties to engage in a meaningful dialogue regardless of the depth of their differences.
Anyone wishing to explore a negotiated solution to a problem -whatever its nature-should do so
with an open mind, for conciliation intends to explore common grounds upon which the parties
may build an agreement acceptable to all involved.
Because of his impartiality, independence, and professional experience, the conciliator
can help the parties understand the motives and needs of all involved. However, the conciliation
process does not seek a solution at any cost, nor may a conciliator impose a solution upon the
parties.
The difference between conciliation and mediation lies in that the conciliator may offer
an opinion and alternatives with respect to proposals advanced by any one party to the other. The
process itself does not vary when compared to the mediation process.
It is notable that the terms mediation and conciliation are often used interchangeably and
are accorded the same meaning, mediation. Most Latin American countries, for example, refer to
mediation as conciliation; they mean mediation. It is also noteworthy that an increasing number
of countries are prohibiting the making of a legal distinction between conciliation and mediation
because there have been instances where mutually acceptable agreements were later successfully
challenged in court on the bases that the accord was reached through conciliation, not mediation.

ARBITRATION
Arbitration is an adversarial process where a neutral arbitrator renders a decision, called
an award, after there has been a presentation of evidence. Like a court trial, arbitration may
include representation by counsel, pre-hearing discovery, written briefs, examination of
witnesses and oral argument.
The advantages of process arise from the ways in which arbitration differs from a court
trial. First, arbitration procedures are flexible and less formal. This flexibility can lead to
significant cost savings in terms of time and expense. Another benefit is that the parties can
choose their arbitrator directly which enables them to pick someone with the requisite amount of
experience and subject matter expertise to render an accurate award. Finally, the arbitration
process is private and confidential, and usually final.
The parties may become involved in the arbitration process in one of three ways: court
ordered, contractual or by stipulation. In a court ordered arbitration, the judge has ordered the
parties to arbitrate based upon certain aspects of their dispute. The court itself sponsors an
arbitration program and will facilitate the process. Court ordered arbitrations are non-binding,
meaning that either party that is dissatisfied with the award of the arbitrator may request a new
trial. Since the process is non-binding, no party has given up any constitutional rights by
engaging in arbitration.
Contractual arbitration and arbitration by stipulation are private and binding. Here, the
parties have chosen to go to arbitration instead of through a court trial. There is no appeal
process in traditional arbitration and thus the award of the arbitrator is final except for the most
extraordinary circumstances. In contractual arbitration the parties have agreed pursuant to a
contract between them that in the event of a dispute, the matter will be arbitrated. Generally there
will be a set of rules or procedures incorporated into the arbitration clause that dictate how the
parties will proceed. Under an arbitration by stipulation scenario the parties have agreed to
arbitrate after the dispute has arisen. The parties must then choose which set of rules and
procedures to follow to guide the proceedings.