Arbitration, mediation, and conciliation are popular forms of dispute resolution that offer interesting and diverse career opportunities.
People pursue alternative dispute resolution (ADR) training and accreditation for a number of reasons. Some aspire to become professional mediators or arbitrators. Others are simply looking to handle conflict better in their personal relationships or workplace.
It’s certainly an industry in demand. From business disputes to divorce settlements, people are turning to ADR as a more flexible, less costly, and more time-effective means of resolving conflicts.
Arbitration, mediation, and conciliation offer three different approaches to conflict resolution. They differ in terms of procedure and outcomes, as well as training and accreditation.
In this post, we guide you through clear definitions of arbitration versus mediation and conciliation, including applications along with pros and cons. Let's get started.
WHAT IS MEDIATION?
According to the ADR Institute of Canada (ADRIC), “Mediation is a process in which the parties agree to an impartial facilitator (a neutral third party) to assist them to reach a voluntary settlement of the issues in dispute. The mediator does not make a decision, and the parties may terminate the process at any time.”
The important thing to note is that the mediator does not decide the outcome of the dispute. Instead, they facilitate discussion and negotiation so the parties can find a mutually beneficial resolution on their own. The mediator senses how far each party is willing to negotiate and compromise. When that point is reached, they play a vital role in helping each side consider factors necessary to settle the case.
Mediation is an informal procedure and the outcome is not legally binding. The parties sign a settlement agreement, but their adherence to it is voluntary.
A mediator helps conflicting parties find a solution that they can both accept
WHAT KINDS OF DISPUTES ARE SETTLED THROUGH MEDIATION?
Mediation can be used to settle a wide variety of disputes. These include (but are not limited to):
☑️ Workplace conflicts
☑️ Customer and patient complaints against practices and professionals
☑️ Landlord-tenant disputes
☑️ Neighbourhood conflicts
☑️ Family disputes
COMMON PROS AND CONS OF MEDIATION
As with any method of ADR, mediation has both limitations and advantages. Here are some of the most common pros and cons of mediation.
- The parties retain control of the mediation process, and are able to make suggestions and reach a mutually beneficial decision.
- Mediation makes it easier to preserve the relationship between parties. Both parties may be satisfied and benefit from the final decision.
- The mediation process is extremely flexible. Participants can choose the mediator, time, place, and structure of the proceedings.
- Mediation requires that both parties agree to follow through on the proposed solution. The lack of binding resolution means there is no guarantee that both parties will abide by any decisions made.
- The perceptions, biases, and attitudes of the mediator can inadvertently impact the decision of the disputing parties.
WHAT IS ARBITRATION?
According to ADRIC, “Arbitration involves adjudication by a third-party neutral (the arbitrator). Unless otherwise agreed, the terms of the applicable Arbitration Act will govern and the decision of the arbitrator, unless otherwise agreed, will be binding.”
Arbitrations can involve hearings, evidence reviews, and decisions in a way that is similar to a trial, but is outside of court and more informal. The key point here is that arbitrations are typically legally binding, subject to arbitration law, and often follow a more formal structure than mediations.
An arbitration agreement is legally binding on both parties
WHAT KINDS OF DISPUTES CAN BE SETTLED THROUGH ARBITRATION?
Theoretically, arbitration can be used to resolve almost any kind of dispute, provided the parties agree to the process. David Merrigan, an experienced and accredited arbitrator, explains:
“Arbitration is widely used in labour relations, business and consumer disputes, sports, construction, international trade deals, torts, and many other types of disputes. Arbitrators often specialize in an area in which they have academic credentials or work experience.”
In terms of career options, arbitrators may work independently as contractors, or for a company specializing in alternative dispute resolution and arbitration.
ARBITRATION PROS AND CONS
Arbitration is an excellent option for disputes that cannot be resolved through negotiation and mediation. It offers an excellent alternative to long, costly litigation battles, and can be adapted to suit the needs of participants.
However, like all forms of alternative dispute resolution, arbitration has both drawbacks and benefits. Here are some of the most common pros and cons.
- Arbitration offers the finality and legally binding outcome of a trial, but is typically more affordable, faster, and less complicated than a court proceeding.
- Arbitration is flexible. The parties have a say in the structure, process, and setting of the arbitration.
- Unlike court proceedings, which are open to public scrutiny, parties can agree to keep the arbitration private and confidential.
- The scope of discovery can be limited as key information such as depositions, requests for documents, interrogatories, medical examinations, and inspections of property are sometimes curtailed.
- Arbitration clauses may offer an unfair advantage to bigger, wealthier parties (employers or large corporations, for instance) when challenged by an employee or consumer with fewer resources.
WHAT IS CONCILIATION?
In conciliation, an impartial third party helps those involved in a dispute reach a mutually acceptable solution. The conciliator’s role is to reduce tension, keep the discussion focused on the issues, and ensure that each party has the opportunity to express their unique perspective.
Conciliation and arbitration are quite different. Conciliation is a much more informal process that does not involve witnesses or evidence reviews. As with mediation, a conciliator does not impose a settlement, and any settlement reached is not legally binding. However, unlike a mediator, a conciliator will recommend solutions or options for the parties to consider. It’s important to note, though, that the parties are not obligated to accept the conciliator’s recommendations.
Conciliators seek to reduce tension and help disputing parties come to a consensus
WHAT KINDS OF DISPUTES ARE SETTLED THROUGH CONCILIATION?
Conciliation is most often used in labour-management disputes. In Canada, it's typically a required step when collective bargaining talks between a union and an employer reach an impasse. The parties must meet with a conciliator before a strike or lockout can legally occur.
CONCILIATION PROS AND CONS
Of course, there are both upsides and downsides to conciliation. Here are some of the most common.
Conflicting parties can benefit from the input and recommendations of a neutral third party, while not being forced to accept the conciliator’s suggestions.
Conciliation focuses on maintaining a harmonious relationship. It’s conducted in a way that encourages the parties to be pleasant and find a solution that benefits them both.
The parties can still go on to mediation or arbitration if they agree to do so.
There’s no guarantee the conflict will actually get settled. The conciliator can offer potential solutions, but the parties in conflict must agree on an outcome.
If either party is not truly committed to finding a resolution, conciliation may be a waste of effort.
DECIDING BETWEEN A CAREER IN ARBITRATION, MEDIATION, OR CONCILIATION
Many alternative dispute resolution professionals use both mediation and arbitration in their practice. They earn certifications in both disciplines so they can offer clients different options for settling disputes. Specific training in conciliation is not widely available, but mediation training often suffices.
Kat Bellamano, a certified mediator and arbitrator with more than 17 years of ADR experience, explains further:
"Mediation generally emphasizes supporting parties to decide their own outcome, based on what is best in their specific circumstances. On the other hand, arbitration generally ensures that there will be a binding outcome that is determined based on the rules of natural justice. I don’t think a practitioner has to decide between the two. Many, including myself, do both."
LEARN MORE ABOUT ALTERNATIVE DISPUTE RESOLUTION TRAINING & CERTIFICATION
Now that you understand the difference between arbitration, mediation, and conciliation, are you ready to explore the training you need to get started in the ADR field?
Kompass Professional Development offers Canada’s only ADRIC-accredited online Arbitration training. This 10-week course is taught by certified arbitrators, delivered totally online, and includes 14 hours of mandatory role play and mock hearings.
Kompass also offers a 12-week online Mediation and Dispute Resolution course, which is taught by certified mediators and accredited by both ADRIC and ADRIO (ADR Institute of Ontario).
Both the Arbitration and Mediation course meet educational requirements for certification through ADRIC. Successful graduates are eligible to pursue the Qualified Arbitrator or Qualified Mediator designations.
Click below to explore training, costs, and admission requirements, or chat live with an advisor.