Analyzing Strengths and Weaknesses of Mediation, Litigation and Arbitration

I hope this email finds you well. I would be pleased to offer you legal advice on the issue in relation to the disputing party, have you tried restarting it (HYTRI) given a settlement has not been reached. In respect to the situation, the main element of this dispute is whether you wrongly terminated the employment contract between you and the opposing counsel under which you arranged to advertise your repair service throughout Leicestershire. To resolve the conflict, I recommend alternative dispute resolution (ADR) which includes arbitration and mediation. Alternatively, litigation is a process of taking the conflict to court which is also readily available.

Firstly, arbitration is a procedure which comprises a 3rd party known as the arbitrator. Typically speaking, it will be a lawyer/expert in the field of contracts. The legally binding decision reached is known as award which can be imposed on you and HYTRI by the courts.[1] Following this, because the process is privately conducted, there’s no danger of outsiders getting access to sensitive information such as the claim of HYTRI’s poor quality of work. Consequently, there’s no risk of publicity damage to your computer repair store company and service as a result due of report proceedings.[2] Under the arbitration act 1996, the courts only have a residual level of intervention unlike litigation. This means courts can only intervene in this situation If there’s a failure in providing a just settlement. [3] Regarding cost, arbitration is a cheaper procedure than taking a case to court. Combined with using a specialist arbitrator means he/she has expert knowledge of the area under consideration which is terminating a contract “for cause” but failing to identify it. Thus, they can come to conclusions within accepted practice. However, you should be aware of the fact utilizing specialist arbitrators can be expensive nevertheless. The lack of a contract clause means arbitration is only available only by the agreement of both you and HYTRI. Moreover, its much quicker than taking the case through the courts but HYTRI and you may be able to make use of the options to challenge the award the arbitrator has issued. Consequently, this would mean the previous costs of arbitration would be wasted thus making it expensive.

The second type of mechanism you may consider is mediation which has been growing in popularity. It consists of a mediator who is a third party with the purpose of aiding you and HYTRI in coming to an agreement you both consider as satisfactory. This demonstrates a strength that both you and HYTRI have the final say in arriving at a decision and will actively participate towards a common resolution when it comes to payment regarding the damages HYTRI are seeking for example. However, having said this, there’s often an assumption when it comes to mediation. This is the parties negotiate terms of their final agreement in an unhostile way and by choice. Put simply this isn’t always the case. Often an inequality of bargaining power and knowledge may exist. There are several different styles which you may undergo with the first being facilitative mediation. This is best put in the quote “asks questions, validates, and normalizes party’s points of views, searches for interests underneath the positions taken by parties; and assists the parties in finding and analysing options for resolution”. From this we can deduce the mediator will focus on aiding you and HYTRI to define issues such as the issues regarding HYTRI losing a stream of business. This can be distinguished from an evaluative type because the mediator’s opinions will be neutral when considering damages being sought by HYTRI for example. This shows you will be given the opportunity to describe the contract dispute from your perspective in the absence of the restrictions imposed by civil rules.[4]

In contrast, in an evaluative type, the mediator applies his/her knowledge to give an opinion. This evaluation will also point out strength and weaknesses of what you and HYTRI have proposed such as the clothing not being regulated under the contract. This illustrates an important advantage of mediation. This is because it gives a chance to test theories of your case. In the absence of the process being monitored, it may lead to the powerful participant to dominate the vulnerable party. This may lead to a forced agreement between you and HYTRI.

Alternatively, litigation is available. This is taking the case to court and the judge will decide the case by considering yours and HYTRI evidence and testimony. One disadvantage of litigation is it is time consuming, so it can take months to reach a decision. This is because there are various steps before the trial begins such as preparing witness statements. Not only the pre-trial steps are lengthy, but the court proceedings can be potentially complex. This insinuates litigation expense is incurred prior to trial and the rest is for the trial because you would need to pay lawyer’s fees. This illustrates its only more beneficial to the wealthier party as they can hire an experienced lawyer to participate. Besides that, it could be argued litigation is unsuitable for this type of dispute because it is technical. There’s a chance neither judge or jury will have the relevant knowledge and experience to deal with the case which may result in incorrect decisions and appeals. However, the judge’s decision can be overturned and can be appealed to a higher court. This demonstrates the importance of an appeal process which is not available in mediation. Arguably, taking the court route may deteriorate the commercial relationship between you and HYTRI because of the potential unacceptable court decisions. Consequently. this demonstrates the unlikeliness of a mutually acceptable decision. Nevertheless, one element imperative to the resolution of the dispute is the courts have the power to oblige witnesses to attend. The right to a jury is also equally valuable.

In summary, after weighing and analysing the pros and cons of each method, mediation is the best option to undergo. This is because it has a higher chance of preserving the relationship between you and HYTRI without putting your dispute in the public domain like civil litigation. Ultimately this is a faster process offering solutions further than a court could impose. Likewise, arbitration is deemed as an adversarial process because of the binding third party’s decision. however, the element of control means you and HYTRI must agree to the settlement which is difficult to achieve and could further result in a small claims hearing.