Some eQuibbly users have asked me how an arbitrator or mediator can do as good a job resolving disputes as a judge or an attorney given that they haven’t had the extensive training in the law.
This is a bit of a red herring.One of the main tenets of Alternative Dispute Resolution (ADR), and indeed a significant benefit of ADR, is that it is not subject to the “law of the land” of any one country or state. That’s one reason why arbitration is so popular for cross-border disputes; if they chose to go to court they would have to pick one jurisdiction’s laws to apply to resolve their disagreement.
Although some ADR institutions apply the law of the land when making decisions or steering the negotiation, in the vast majority of mediations and arbitrations, the formal law is not applied. Of course some general laws are taken into consideration as a matter of common sense and fairness; for instance if two people sign an agreement it is generally considered a very good indication that they both intended to honor that agreement. But laws that are applied by a judge in court, such as strict time limits and laws on what is considered admissible evidence, are not applied in ADR or ODR (Online Dispute Resolution which is a type of ADR).
More important than the law, is that the arbitrators and mediators remain unbiased and fair, follow the procedural rules agreed to by the parties (like the “Rules of Arbitration” listed on eQuibbly), and consider the dealings between the parties leading up to the dispute, any contracts or other evidence, and the specific facts and circumstances presented to the extent they’re credible. Decisions are based on fairness, equity, common sense and the specific facts and circumstances, rather than the rigid laws of a court.
So there is no need to know the laws of the land, nor is there a need for an attorney or a judge with expertise in the law to resolve your dispute. That being said, many lawyers and ex-judges do become mediators or arbitrators.
Do you think the law of the land has to be applied to arrive at a good resolution to a dispute?