Litigate, Arbitrate or Mediate?
Pursuing the litigation route to try to resolve workplace conflict has many
disadvantages, not least the fact that the ethos of our legal system is based on
entrenching conflict through its adversarial approach. Parties enter into litigation with the knowledge that the outcome will be win or lose and that there is no guarantee who will emerge the victor. For businesses, even if they technically win the case they may lose out overall from any resulting negative publicity which may be generated as a result of the legal proceedings and the considerable costs of defending a claim.
Litigation can be a slow and long-drawn out process as well as an extremely expensive one. The fact that the participants have little control over the litigation process, or the resulting outcome, is often highly stressful.
Arbitration can be a faster method of reaching an outcome than litigation. However, it still encourages parties to remain entrenched in their positions and to advance their own case rigorously to try to convince the arbitrator that they are in the right. Again the participants have no control over the outcome of the case and have to accept the decision of the arbitrator.
differs fundamentally from litigation and arbitration in that it is not an adversarial approach. It doesn't seek to address conflict by continuing the conflict in a different arena. Its ethos is that conflict is best resolved using a collaborative, problem-solving approach. Far more positive and productive results can be achieved through co-operation than through combat.
Mediation gives participants a far greater measure of control over the resolution process and outcome, thereby reducing the stress of uncertainty.
It is up to the parties involved to agree on what is a reasonable and workable
settlement, rather than having this imposed on them by an arbitrator, tribunal
Mediation seeks to build bridges by raising levels of understanding between the parties involved. While acknowledging that things have gone wrong in the past and addressing this, mediation encourages participants to focus on the future. It facilitates agreements which allow all participants to move on and take positive steps to prevent similar difficulties arising again.