tly without the intervention of third parties. Mediation is "a process whereby a neutral third party assists disputing parties reach a mutually acceptable decision." In mini-trials and early neutral evaluation, an impartial third party hears the presentations of the parties and renders its opinion as to how the dispute can be resolved which is not binding on the parties. In other variations, such as 'high-low' arbitration, the opinions of the arbitrators set the outer bounds for the resolution of dispute from which the parties can choose.
Arbitration, therefore, is a determination of the merits of a dispute done outside the regular courts of law. The relationship between arbitration and the regular legal system has varied over time and culture.
Pre-Modern Historical Evolution of Arbitration
Ancient Origins. Wolauer said "the origin of arbitration is lost in obscurity." Many forms of ADR, more akin to modern mediation, such as familial or tribal forms of conciliation, were common in ancient civilizations such as Japan, China, Polynesia and many parts of Africa. According to Kellor, "long before law was established or courts were organized or judges had formulated principles of law, men had resorted to arbitration for the resolving of discord, the adjustment of differences, and the settlement of disputes."
Kellor said Greek and Phoenician traders used voluntary arbitration to resolve their disputes. According to Bonner, voluntary arbitration in Athens in civil matters was replaced about 700 BC by a system of compulsory arbitration which was unpopular because the arbitrators were corrupt. Under the Athenian democracy of the 5th century BC and later, voluntary arbitration was used "to relieve the congestion of the courts" and each citizen "served as an arbitrator for one year." The Athenians introduced the concept of natural law or natural justice which later was to play an important role in the evolution of Roman an...