Mediation and Arbitration

Mediationand Arbitration

Mediationand Arbitration

TheRole, Function, and Effectiveness of

Conflictsare daily experiences whether in the personal, social or career lifeof an individual. If people get involved in a conflict, they willlook for help elsewhere. Due to factors such as cost and time, theconflicting individuals may decide to employ either arbitration ormediation in the process of solving their problems. This essay willcompare arbitration and mediation and their effectiveness, functions,and roles.

Arbitrationrefers to a conflict resolution method in which the individuals orparties that have disputes present the conflict to a third partycalled the arbitrator (Moore,2014).The arbitrator then listens to the case from all the partiesinvolved. The intermediary will then examine the evidence andtestimonies that have been provided in the case and make a judgment.The Arbiter tries to be fair to all the parties so that everyone’sneeds are considered. However, by the time a case is settled, oneside will be deemed wrong while the other is right since thearbitration results are always a win-lose situation. Arbitration iseffective when the parties that are involved in the case are notcommunicating with each other. Therefore, the arbitrator will beresponsible for the enhancement of proper communication between theparties. The parties will then present their issues to theintermediary who will then give a resolution. Besides, arbitration iseffectual when the case that is being solved has facts (Moore,2014).The truth will be used to make a verdict.

Mediationis a method of conflict resolution in which a third party is involvedin settling disputes among different parties. The major role of amediator is to help the differing individuals to come together,analyze the situation, and formulate the terms that should befollowed by all the disagreeing parties and use the terms agreed uponto come up with a solution to the problem (Moore,2014).The mediator helps the opposing parties to eliminate the differencesthat are between them and come to an agreement that will ensureeverybody benefits. The outcomes of a mediation case are a win-winsituation. The mediator is not the one responsible for making thefinal decision in a case but the persons in a conflict decide on whatto do. There are three kinds of mediators roles namely socialnetwork mediators, independent mediators, and authoritativemediators. Authoritative mediators are people who have someauthorities like the managers who mediate a case and make sure thatit is solved professionally. They can either remain neutral whilesolving a case or influence the results of a situation in aparticular direction. Independent mediators help the warring personsto settle their disputes by formulating voluntary and sharedsolutions that are acceptable to both parties. Social networkmediators are individually related to the opposing parties who eithertake side with one party or remain neutral, but they are consideredto be fair (Moore,2014).

TheTypes of Disputes That Can Be Utilized By

Mediationis often used in settling non-criminal disputes such as contracts,divorce cases, employment issues, small enterprises ownerships, andleases. For example, a couple that is planning to divorce can choosemediation in the formulation of a decision about the custody of theirchildren after the divorce. In this case, the mediator is supposed tofacilitate a fruitful communication between the partners so that theycan come up with an equally pleasing option about the children’skeeping. Also, business persons can make use a mediator to help themin solving problems that might be dividing their investments.Moreover, individuals can employ mediation to solve matters such aspersonal aggravation successfully. Arbitration is used to solve casesin which the disputing individuals want someone outside the case tobe involved in the case resolution. In most cases, arbitration isused to settle disputes in the international levels, consumerdisputes, employment rights, and corporate disputes.

TheDrawbacks of Arbitration and Mediation

TheDrawbacks of Arbitration

Arbitrationdoes not involve a jury at any point. As a result, many individualsfeel that lack of a jury is like giving up an important right amongthe conflicting parties (Association for International Arbitration,2012). The arbitrator plays the role of both the judge and the jury.Also, arbitration is not a fast method of conflict resolutionespecially when the dispute involves complex legal issues, manyarbitrators, and the disputing parties are several. In this case,arbitration might take a longer duration than litigation. Besides,arbitration can be done in specific locations. The places thatarbitration has been set to occur can be inconvenient or be demandinga lot of time. Also, if the arbitrator happens to makes a wrongdecision, this may result in an unfair judgment, and the chances fora court to correct the issue may be minimal. Moreover, sometimesarbitration can lack fairness especially when one of the parties in aconflict is familiar with the arbitrator. In this case, thearbitrator may be tempted to favor one side thus end up settling thecase in a biased judgment. Furthermore, arbitration can be expensivedepending on its type and the complexity of the case. Arbitration ismore expensive mostly when the decision that is made is non-binding,and the parties decide to take their issues back to the court. Thisprocess will require additional resources from the parties(Association for International Arbitration, 2012).

Drawbacksof Mediation

Thefirst disadvantage of mediation is that it is not possible to set alegal precedent. The main aim of settling a dispute is to have theplaintiff’s demands implemented (Association for InternationalArbitration, 2012). However, there is a desire to have a legalprecedent that can be yield a broader social impact. Mediation is notthe best option for cases that have an intention of setting in alegitimate guide. Also, there is no guarantee that mediation willlead to an agreeable settlement. Sometimes intervention will fail toresolve a specific dispute and end up wasting resources and time ofthe conflicting parties who will eventually have their cases settledin the court (Association for International Arbitration, 2012).

TheAmerican Arbitration Association (AAA)

This is an organization thatoffers services to persons in a dispute when they want to resolvetheir cases outside the court (American Arbitration Association,2010). AAA is mainly concerned with the administration of caseswhereby it chooses the arbitrators as well as mediators on behalf ofthe parties in dispute. Also, AAA is responsible for setting thehearing date for a case and makes sure that the processes ofmediation or arbitration are fair (American Arbitration Association,2010). AAA can be of use in my future career which will be a salesrepresentative. In the course of my career, it is likely that I willencounter a situation that will demand a mediator or an arbitrator.For example, I might be in a situation whereby two or more clientswant to buy a particular property that I will be selling. In thiscase, I will need a mediator or an arbitrator to decide on the bestcustomer.

References

Topof Form

American Arbitration Association.(2010). Handbook oninternational arbitration and ADR.Huntington, N.Y: JurisNet.

Topof Form

Association for InternationalArbitration. (2012). Europeanmediation training for practitioners of justice: A guide to Europeanmediation. Antwerpen:Maklu.

Topof Form

Moore, C. W. (2014). Themediation process: Practical strategies for resolving conflict.New York: Wiley &amp Sons.