Business Law: Method of Alternative Dispute Resolution - Essay Example

Negotiation:

It is to be noted that this process does not acknowledge the involvement of a third party (even neutral such as a judge or a jury). Two main approaches involved in negotiation are adversarial negotiation as well as a problem-solving approach. In the adversarial approach, the warring parties seek a solution through negotiation with a motive of maximizing their own gain whereas, in the problem-solving approach, the joint gain is sought by the parties involved. Though the method is discussed as an independent tool for solving disputes, it is often used before the adoption of formal method(s) to solve a dispute, and in such a case, negotiation is not perceived as an alternate to litigation processes.

 Mediation:

In mediation, unlike the case with negotiation, a neutral person is a characteristic feature and is involved in the facilitation of communication between the parties while at the same time offering suggestions to possible ways of solving the dispute at hand. As experts, the neutral person chose (mediator) is often chosen by the consent of the warring parties. The main feature of the process is having the mediator assist each side to listen to the other in a dispute. Persuasion is a mandatory character for the mediator in order to have the deliberation on the various solutions sighted and the process is concluded after the parties involved unanimously accept a solution after which the decision is put into writing and signed into by all the parties. Collective bargaining issues are the main examples of disputes which adopt mediation as a tool for a solution where the conflicting parties (like employees) must work together even after the dispute. It is to be noted that though mediation is adopted as an alternative to litigation, the main reason for its adoption is usually to avoid court procedures.

Arbitration:

This tool of solving disputes is explained by the use of a neutral third party and outside of the court system to find a solution to a dispute. It has a distinguishing feature in that parties involved in arbitration are in contracts and they assume the role of a judge though not as constrained by precedents and the arbitrator’s role is finding a solution that is legally binding. The process, therefore, assumes like procedures like those ones used in trials through the rules applied in the process of arbitration are a little relaxed than in a legal trial. However, it is also noted that the choice of an arbitrator is a process that involves both parties involved in the dispute. Efficiency and low costs involved in arbitration make the main advantages sighted for its use as against litigation.

In conclusion, this paper discusses the three main ADR tools, which are negotiation, mediation as well as arbitration, and shows their applicability instead of adopting litigation methods of solving disputes. The paper orders/ranks the tools according to value where negotiation comes first, followed by mediation, and finally arbitration. This rank is based on ease of use, costs incurred as well as the time involved where negotiation becomes fundamentally the easiest tool in cost and time to be used. On the other hand, the arbitration process is time-consuming and often expensive in awarding the arbitrator hence the last rank.