Alternative Dispute Resolution: Negotiation and Mediation
In today’s world, disputes are inevitable. That is why the process of resolving disputes between two or more contending parties is essential. Recently, a method of resolving disputes, known as alternative dispute resolution (ADR) has gained notoriety due to the perception by the public that it is less expensive, more effective, and more satisfactory. Dispute resolution through ADR seeks to avoid the normal court and judicial system for issues that can be dealt with without litigation (Staff, 231; Spencer, 24). By involving a professional third party to effectively and constructively resolve their conflicts, the contending parties are able to agree with one another through negotiations. This paper compares and contrasts two common forms of ADR: unassisted negotiation and mediation.
In resolving disputes through unassisted-negotiation, the contending parties seek to reach a settlement without involvement of outside parties. For a successful negotiation, the parties identify the key issues upon which they do not agree in, disclose their respective needs and interests, identify possible settlement options, and then they negotiate terms and conditions of agreement (Susskind and Cruikshank, 80). Unassisted negotiation is most commonly used when the issues at stake are easily identifiable and are few in number (Isenhart and Spangle, 56). In addition, it works well in situations when the contending parties are able to establish communication that allows for joint conflict resolution and when a generally high uncertainty regarding the outcome of unilateral action exists for both the parties. It is important to note that in this type of ADR, one party cannot force another party to engage in negotiation, in good faith, or at all. The agreement is normally reached through a cooperative process in which all the parties strive to come up with a way forward that is equally advantageous. In some cases, it can also be confrontational in which every side try to triumph over the other.
On the other hand, in mediation, a third party is present to orchestrate the moves of the contending parties. Parties most of the time execute a mediation agreement in which they resolve “to co-operate with the mediator in the conduct of the mediation and to use their best endeavors to comply with reasonable requests made by the mediator to promote the efficient resolution of the dispute” (Spencer and Brogan, 206). For the success of this process, the mediator may require relevant information from the contending parties that would allow the identification of the contentious issues. Although the intervention of the neutral third party is essential in mediation, the other dispute resolution alternatives can still be sought.
The distinguishing feature of mediation is that a third party (the mediator) may either assist the contending parties to negotiate their own agreement or express an opinion on what might be a fair or reasonable agreement, usually where all the parties have consented that the mediator may do so. In resolving disputes, a mediator may work with the contending sides separately in caucuses, or with all the sides involved, in establishing interests and looking at alternatives that cater for their interests (Boulle, Colatrella and Picchioni, 3). In most cases, it has been observed that mediators are different concerning their level of directiveness and most of them tend to concentrate on business relationships in the process of ensuring that the parties reach an agreement. Such relationships are usually maintained for a long time. Workable solutions often lower the tension between the parties and this leads to enhanced relations. The important point to note here is that all the sides cooperate with the mediator in coming up with a process which adequately addresses their interests and establishes the function of the mediator in helping them reach an agreement. Contrary to unassisted negotiation, mediation usually has a structure, timetable, and dynamics that the former does not have. Confidentiality is a key element in this process. As much as there can be no compulsion to resort to this method of resolving disputes, the settlement agreement reached by all the parties is considered to be mutually binding and no party can claim otherwise.
Both unassisted negotiation and mediation are usually preferred over other methods of conflict resolution, such as going through the standard legal channels. This is due to a number of reasons. First, both methods are considered to be less expensive and usually take less amount of time as compared to dispute resolution through the attorneys and courts. Whereas a case in court can last for several weeks or months before a solution is reached, a case that is to be solved using the alternative dispute resolution methods can take a matter of hours or days to be solved. Spending less time to reach a resolution implies that less expense are incurred in settling the dispute. Second, alternative dispute resolution methods offer a confidential process. The outcome of the conflict resolution exercise takes place without the knowledge of the public; thus, the disputants are assured of their confidentiality. Lastly, unassisted negotiation and mediation provide multiple and flexible possibilities for resolving a disagreement. In a court case, the disputants may get a resolution, which is often thrust to them by the judge or jury; however, in alternative dispute resolution, the disputants are more likely to get a result that is mutually agreeable.
The presence of a mediator significantly alters the process of conflict resolution. Mediators usually employ a range of methods to enhance the communication between the contending parties. This is aimed at ensuring that a concrete agreement is reached concerning the subject that brings a difference of opinion. The success of a mediation process relies on the skills and experience of the mediator to resolve the dispute (Cooley, 514). This is why a third party must be as impartial as possible. And, since the mediator does not give any legal advice, he or she only assists the disputants in the problem solving process. Depending on the contentious issue, the mediator can or cannot propose ways of tackling the dispute. However, whether the mediator does this or not, he or she significantly alters the process of conflict resolution by assisting the parties to think “outside the box.” Therefore, this ensures that the parties find a convenient solution that caters for their interests (Beer, 9). Mediation has been successfully used in resolving disputes in many situations. For example, when workers of a factory go on strike concerning deplorable working conditions, a third party representative may be involved to settle the dispute between the contending parties by coming up with realistic ways of resolving the disagreement. Since a good mediator is someone who has received adequate training in conflict resolution, he or she should be able to work in dual-party to multi-party situations in effectively resolving matters in an structured manner.
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