In most legal systems, courts perform two basic tasks: they resolve disputes in accordance with the law, and they formulate general rules to interpret, implement and enrich the existing body of law. Arbitration, in contrast, is not designed to contribute much to the lawmaking process by way of precedents. Its main function is dispute-resolution. The shortcomings of arbitration in jurisprudential terms are not problematic, in so far as courts are in a position to decide a sufficient number and variety of cases, in order to produce the pertinent case law. Accordingly, the high degree of political independence that arbitrators exhibit, when compared to courts, is not objectionable, given the limited part they play in the generation of norms.

If negotiators work their way through the tasks that we have explored in Chapters 5–7, then they should be confident about managing the process effectively and so achieve a good outcome. However, negotiations are both messy and complex, so they doesn’t always go according to plan. As we saw in Chapter 8, negotiations can get stuck or reach a deadlock. That chapter suggested some ways to handle a deadlock effectively and move the negotiations on towards an outcome. Another way to overcome a deadlock is to involve a mediator. It is unlikely that the reader will become a mediator, but a negotiator should nevertheless understand the nature and effectiveness of the mediation process. Therefore, this chapter examines the nature of the mediation process and the role of the mediator in helping the parties resolve their differences. The parallels between mediation and negotiation should become obvious so negotiators can improve their own skills by learning from the approach taken by good mediators.