Mediation and Arbitration as Alternatives to Litigation - Essay Example

? Mediation & Arbitration as Alternatives to Litigation Parties of opposing parties have many methods in which they can solve the dispute they are encountering. The various different methods in which a dispute can be under resolution are known as alternative dispute resolution methods (A.D.R). Litigation is usually a costly and time-consuming method of conflict resolution, which is why the parties under dispute prefer other methods of settling the conflict that is more confidential and less time consuming. In order to understand why conflicting parties would prefer one method to solve a dispute to another, the views presented by both should be put into consideration in reference to the methods involved in the resolution process. In alternative dispute resolution, the principals are the parties in conflict and the best method of resolving the conflict is the key. In this case, the manner of the conflict is under careful consideration and the best method alternative to litigation is taken into use. Although, not all cases require a different resolution method, in some cases litigation is the best method due to the authority involved in the final decision. Peaceful coexistence requires a lack of bias or favor for any particular party. In a conflict, the resolution depends on the feelings of both parties at the end of the conflict; alternative dispute resolution achieves the goal that both parties feel satisfied with the outcome of the resolution. Several methods may be used in trying to resolve conflicts they include; arbitration, negotiation and mediation. In this study, mediation and arbitration are the only methods taken into consideration as the ADR methods. Negotiation is also important and actually, the best method for two conflicting parties but it has some limitations. In negotiations, the conflicting parties sit down in the same room, talk about their differences and agree to some compromises therefore the conflict is hurriedly resolved and in a peaceful manner. The amount of preparation for a negotiation depends on the complexity of the issues affecting the parties. Negotiations assume that the conflicting parties are willing to end the conflict in good faith with each other. It is sometimes taken advantage of and one party takes advantage of the other hence exploiting the compromises made by their counterparts. The result of such a biased negotiation is a far more complex conflict and further mistrust among the parties. Mediation In regards to resolving conflicts, this is method is preferred to other methods due to the simplicity of its structure in conflict resolution. Like negotiation, mediation employs the same structure where the conflicting parties get a sit-down in the same room to discuss what to compromise. The difference between negotiation and mediation is that in mediation, there is a neutral third party involved. The third party acts as the referee and chooses the best resolution for the parties. Normally, the neutral third party is someone both conflicting parties respect. They seek to accept the decision he makes with the belief that he will be unbiased and impartial (Cheldelin, Druckman & Fast, 2008). The conclusion of the process of mediation comes to an end when a consensual agreement is arrived at; the mediator’s role as noted is not to offer the decision or the agreement for the two parties. The mediator acts as a guide for the conflicting parties and offering advice on possible resolution methods. By doing this, mediation is more outstanding as opposed to negotiation since the mediator while guiding the conflicting parties is able to uncover any underlying interests. The mediator therefore helps each party to formulate a resolution which averts any future conflicts over a long period since both parties get satisfactory handling to the fullest extent possible. As any type of dispute resolution should start, mediation kicks off by evaluating all the relevant issues and facts in the dispute and tries to determine what the parties in the dispute hope to achieve through the mediation. After this step is complete, the parties should then pick an appropriate mediator most appropriate in their conflict. Each mediator has their own unique style of assisting the parties under conflict therefore the parties conflicting have to pick a mediator most suitable for their type of conflict (Ordover, Doneff, & National Institute for Trial Advocacy, 2002). There are two methods that a mediator can follow; the facilitative and evaluative methods of mediation. In the facilitative method of mediation, the mediator’s role is to facilitate communication between the parties in conflict with each other. In facilitative model, the mediator uses proper communication between the parties to help them achieve the best outcome for the conflict to end amicably. In the evaluative model of mediation, the mediator is more direct with the parties and he tells them what he or she feels is the best way forward. In this case, the mediator actively gives his or her opinion to the two parties and they consider whether to follow the mediator’s guidance to achieve a common ground for a consensual solution best for peaceful coexistence. A third recently, developed model under use by mediators is the transformative model. This model focuses on the relationship of the disputing parties whereby the mediator creates an understanding between them and strikes a point of empathy between the parties. In this model, the mediator makes sure each party knows why the other did exactly what they did and from there an understanding struck that ensures the parties resolve their conflict by reaching a mutual agreement. In order for the parties to have successful mediation, there has to be an evaluation of the conflict against these methods used by mediators and the best method applied. While choosing a mediator in highly technical issues, a person with background knowledge of these technicalities is the best candidate. This is because he or she has knowledge that comes in handy later in the mediation and the mediator has the ability to relate to the situation. After determination of the mediator, the next step is to work with the parties to ensure that they come up with an appropriate time and location for the mediation sessions to begin. In picking the time and place the mediator should be impartial and let the parties pick the most appropriate time as opposed to negotiation where the party with more decision making power determines the time and place. After this, the mediation kicks off with the mediator as the one in charge of the sessions. In the first session, the mediator starts with an introductory speech where he tells the parties everyone’s role in the conflict, which helps in kicking off the resolution on a common ground. Most mediation goes for several sessions and if an agreement is reached, then the mediator drafts a document formalizing all the agreements reached by the conflicting parties. Arbitration Arbitration is similar to mediation although it differs in a few major ways. In arbitration, the parties sit and talk about their dispute with the presence of a third party just as in mediation. The difference comes in when it comes to the role of the third party involved. In arbitration, the third party is the decision maker in the conflict. The conflicting parties argue in front of the neutral party each making their case and then the neutral party comes up with resolutions for the conflicting parties to abide by. Arbitrators (the third party), are usually people with expertise on the topic of contention, attorneys at law and retired judges. After the arbitrators have made a decision, the parties in conflict if not satisfied have a period to object to this decision. Most cases that are not resolved in arbitration go to litigation. Courts sometimes prefer to use arbitration as opposed to litigation since arbitration is less time consuming as compared to litigation. The decision to arbitrate however decided by the conflicting parties has to be formalized. An agreement, documented and cosigned by the parties in conflict that they are willing to arbitrate has to be available. Preparation for arbitration is similar to preparation for litigation with documentation of evidence and case building. In case building, evidence is gathered and even witnesses used in making the arguments to arbitrators who act as judge and jury. The parties in conflict are allowed to have attorneys who aid in making a case for the parties and the arbitration process carries on like a formal trial with opening statements, cross-examination of witnesses and closing arguments. Having an understanding of the above methods gives an understanding why litigation is not a preference by the conflicting parties. Businesses also prefer arbitration and mediation due to neutral expertise in the conflict resolution. As opposed to judges who are law experts, in arbitration, the arbitrators are well equipped with business knowledge and the decision made is well informed on both the law and business fronts. Alternative methods to litigation are also flexible in that the decision reached is in favor of the conflicting parties as opposed to litigation where the decision reached is due to the laws behind the conflict. In business, most of the conflicts resolved end peacefully for all parties involved and the business relationship is kept intact. According to most business people, the best part in reaching a decision amicably for an argument is keeping the bonds strong with your partners. Many times, if a conflict goes to litigation the bonds between the partners are severed due to the process of litigation. In arbitration and mediation, the solution of a conflict mostly leads to tighter bonds between the parties in conflict and that is why this is preferable in business. Litigation takes the confidentiality out of a conflict the moment it gets to court where the conflicting parties go at each other with all bad information they can get. Some businesses have gone under after litigation due to the bad image they get from the evidence presented in courtrooms by the other parties. Arbitration involves the conflicting parties and the arbitrators and any other public audience is not allowed in the hearing rooms hence preserving confidentiality of the conflict and companies (Council of Europe, 2000). In conclusion, it is true to say that alternative dispute resolution means are on the rise worldwide. Attorneys who previously depended on litigation to source of clients are now turning to other means and are present in these alternative dispute resolution methods. Litigation is not bad; however, it should be used in absolute necessity and where the conflict cannot be resolved in any alternative means. While arbitration will never replace litigation, more conflicts should be resolved using alternative methods, which are time and cost effective. The latter will reduce the congestion of cases in courts and more conflicts will be resolved peacefully. References Cheldelin, S., Druckman, D., & Fast, L. (2008). Conflict: From analysis to intervention. New York: Continuum. Council of Europe. (2000). Alternatives to litigation between administrative authorities and private parties: Conciliation, mediation and arbitration ; proceedings, multilateral conference, Lisbon (Portugal), 31 May-2 June 1999. Strasbourg: Council of Europe Pub. Ordover, A. P., Doneff, A., & National Institute for Trial Advocacy (U.S.). (2002). Alternatives to litigation: Mediation, arbitration, and the art of dispute resolution. Notre Dame, Ind: National Institute for Trial Advocacy. Read More