The Difference Between Litigation, Arbitration, Mediation and Conciliation

Alternative dispute resolution processes such as arbitration, mediation and conciliation and have become increasingly popular because litigation is time consuming, expensive, unpredictable and emotionally draining. But before deciding on which way to resolve your disputes it is important that you know the difference between the different options available to you in alternative dispute resolution.

Arbitration and Mediation

Arbitration and mediation are similar in that they are alternatives to traditional litigation and they are sometimes used in conjunction to litigation.

Arbitration and mediation can both be binding but in different ways. An agreement to enter into arbitration can be enforced by the courts while an agreement to enter into mediation cannot be enforced. Further, the outcome of an arbitration process is determined in accordance with an objective standard of the applicable law, while the outcome of a mediation process is determined by the will of the parties. This is why it is often said that mediation “is an interest-based procedure".

Arbitration is generally conducted with a panel of a single or multiple arbitrators who takes the role of judges. They make decisions on the evidence made available to them and give written opinions. In an arbitral process, it is common for each side to select an arbitrator. The two arbitrators then select a third arbitrator and decisions are made on majority votes. On the other hand, mediation is generally conducted by a single mediator who is a neutral third party. His or her responsibility is simply to help the parties to come to an agreed resolution.

In an arbitration, the parties' responsibility is to convince the arbitral tribunal of the strength of its own case but in mediation since the outcome must be accepted by both parties, the party's responsibility is to convince or compromise with the other party.

Mediation and conciliation were not subject to any statutory regulation in many countries before. The position was the same in Nigeria until 1988 when the Arbitration and Conciliation Decree was promulgated. Part II, Section 55, and the 3rd Schedule of the Decree make provision for Conciliation.

The difference between mediation and conciliation on one hand and arbitration on the other hand stems from the fact that, in mediation and conciliation, the parties retain the responsibility for and control over the dispute to be resolved and they do not transfer the decision making power to the mediator, whilst in arbitration the arbitrator has the responsibility of controlling the process and making of a binding award.

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