MEDIATION AND ARBITRATION This research paper s

When a civil dispute arises between different members of society, it may be resolved in a variety of ways. In negotiations, the parties resolve their dispute directly without the intervention of third parties. They may invoke the power of the state by initiating litigation in the civil courts. Since the 1970s, the use of various forms of alternative dispute resolution (ADR) techniques, principally arbitration and mediation, has greatly expanded. This growth has been fueled by a broadly held consensus that adversarial litigation suffers from severe deficiencies and that arbitration and mediation as well as other forms of ADR offer speedier, more cost effective and fairer and more responsive civil justice processes and outcomes. Efron said "adjudication . . . creates a structured adversary combat among the parties" which may be damaging to on-going relationships, while arbitrations and mediations "tend to promote cooperation among the parties." The most important single factor was the 'litigation explosion.' According to Kaye, between 1971 and 1992, the civil case load in the United States rose by 1110 percent, straining the capacity of the civil courts and producing "huge increases in . . . litigation costs . . . delays."

Essential features of arbitration and mediation. Exce

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to facilitate an agreement between the parties, that he or she will not act as an advocate for either side, and that the final decision on any settlement is up to the parties. His principal role is as a facilitator and not as a decisionmaker. Burden of Persuasion In arbitration, the normal court burden of proof standards apply. That is, the party seeking relief (the Claimant) must prove by the preponderance of the evidence that his claim against the other party (the Respondent) has merit. All the Claimant's efforts at persuasion must be directed to the arbitrator(s), not the other parties. This normally means that he submits the equivalent of a complaint in writing and that evidence is presented by the Claimant, is subject to cross-examination by the Respondent, and rebuttal by the Claimant. Opening and closing arguments are directed to the arbitrator(s) by each party. Opening and closing briefs are often but not always employed. One difference between arbitration and litigation is that arbitrators are supposed to render justice to act ex aequo et bono. Aristotle said: "the arbitrator keeps equity in view, whereas the judge looks only to the law." In Anglo-American jurisdictions, arbitrators generally have less latitude to fa
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Approximate Word count = 2860
Approximate Pages = 11 (250 words per page)

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