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When Maritime Mediation is Preferable to Maritime Arbitration
In a paper presented by Rodney Elden and Irene Ziebarth to the 8th International Conference of Maritime Arbitrators in Auckland, New Zealand (March 1-5, 1999), the authors lay out points to assist in determining if maritime mediation is preferable to maritime arbitration to resolve specific maritime disputes. The paper was entitled “Does Mediation Have a Place in International Maritime Disputes?” and discusses the general benefits of ADR practices for resolving disputes that arise in maritime environments and maritime-related business situations.
According to their article, factors that favor mediation to resolve maritime disputes include:
- The business relationship could continue or be resumed;
- It is desirable to be able to control the outcome of the dispute;
- The position of each side has merit, and arbitration could well result in either side prevailing;
- Arbitration preparations would be costly and protracted;
- A speedy resolution is important;
- The dispute raises highly technical or other complex factual or legal issues;
- The law on the determinative legal issues is well settled;
- An adverse precedent needs to be avoided;
- No further discovery is required, or limited discovery will suffice, for each side to assess its strengths and weaknesses;
- The case lends itself to settlement before an arbitration award is made;
- A presentation by each side of its best case will help promote a better understanding of the issues;
- A strong presentation will give one side or the other a more realistic attitude about the case;
- A mediator could help diffuse the emotion or hostility which may bar a settlement of the dispute;
- The evaluation of a neutral advisor could help break the stalemate;
- There is a potential for a runaway verdict based on sympathy with the plight of the other side; and
- Neither side really wants to arbitrate.
On the other hand, the authors state that there are certain factors that favor arbitration as a way to resolve maritime disputes, including:
- A vital corporate interest is involved;
- There is no bona fide dispute; the other side’s case is without merit;
- The advantages of delay run heavily in favor of one side;
- The case most probably can be settled in the near future through simple unassisted negotiation;
- The other side has no motivation to settle because of expectations of a large judgment or a highly emotional stake in being vindicated;
- More time must elapse before each side’s positions and the settlement possibilities can be evaluated;
In either case, the benefits of ADR to resolve maritime disputes are obvious.