In business and in personal life there will be times when two
parties are in conflict over issues that cannot successfully be resolved. One
party may believe they are being treated unfairly, one or more parties may have
strong and difficult personalities and not be inclined to negotiate, while
others may have multiple issues or issues that are very complex.
The best way to handle such cases may not be to go to court,
rather to engage in alternative dispute resolution (ADR) methods. I will
briefly examine the procedures of mediation and arbitration in conflict
resolution, the types of disputes that utilize mediation and arbitration, and
drawbacks to the use of mediation and arbitration. Lastly, I will look at the
function and purpose of the American Arbitration Association (AAA), and its
potential usefulness in my future career.
Mediation
Mediation, according to Coker & Gubernick (2009), is a “platform
used to resolve differences, most often between two or more parties, conducted
by an impartial third party… [where] the disputing parties are empowered to
determine the final agreement” (para. 4). Abigail & Cahn (2011) further
clarify that, “[t]he conflict has reached a point where the parties are unable
to resolve the issue by themselves due to a breakdown in communication, and
normal relations are unlikely until the dispute is resolved” (Abigail &
Cahn, 2011, p. 195).
Because each party is empowered to resolve their own conflict,
there is full participation by the parties, yielding a high success rate where
a workable agreement is reached between parties eighty percent of the time
(Abigail & Cahn, 2011), with a higher level of satisfaction compared to
court or arbitrator rendered decisions.
Other benefits include restored communication and normalized
relations; a resolution being reached more quickly than what court schedules
allow; a “higher compliance rate in following through with the agreements”
(Coker & Gubernick, 2009, para. 7); a more cost-effective process; the
control, by both parties, in the resolution of their conflict; and often, a “greater
respect and understanding of the other party’s perspective” (para. 7) to aid in
reaching a resolution.
Arbitration
Arbitration, also an alternative means of ADR, is where a neutral
third party hears each side of the dispute, and then makes a decision
independently as to what the resolution will be. Because both parties
have agreed beforehand to abide by the decision, it is more binding than a
court decision (Abigail & Cahn, 2011), and more formal than mediation.
Role of the
Mediator
The role of the mediator “defined as neutral third party, who has
no decision-making power regarding the outcome of the mediation” (Abigail &
Cahn, 2011, p. 197), is to move the conflict from a private affair to a public
one, decreasing the likelihood of competition and a win-lose solution, and
increasing the possibility of cooperation, collaboration, reaching reasonable
decisions, and obtaining social justice (Abigail & Cahn, 2011). The
introduction of a mediator into a conflict can be informal, where the mediator
has no training or certification, or formal where the mediator has training
and/or certification.
Mediators try to “create a safe and constructive environment to
encourage the disputants to communication, cooperate, and work out their own
mutually satisfying solution” (p. 197). Mediators must be neutral,
unbiased, and must not take sides. They must practice what the Center for
Mediation and Law at Harvard Law School terms, “subjective neutrality,” where
the “validity and truth of each person’s story” is honored apart from who is
right or wrong (Abigail & Cahn, 2011, p. 197). Mediators need to maintain
full confidentiality. All parties must agree to these terms, which, in turn,
facilitate a high level of self-disclosure and a more effective mediation
session between the conflicting parties. Mediators need to be competent
communicators, and effective facilitators of communication for the parties
involved.
Role of the
Arbitrator
An arbitrator’s role involves the determination of legal rights
(Aliment, 2009), and leads to a binding resolution. Often, the role includes
engaging in “attributes of litigation, including the use of depositions,
written discovery, and document production” (para. 7), and witnesses may be
called to testify. Formal procedural rules are drafted ahead of time
determining control over how the dispute is decided, and specifying the “extent
of the award or type of damages” (para. 7). The arbitrator, as with the
mediator, must hold everything in the strictest of confidentiality.
Effectiveness of
Mediation
Mediation is effective in resolving disputes in the workplace,
divorce, neighbor situations, school, small claims, victim-offender, etc., and
wherever the conflicting parties can benefit from “a chance to address their
conflicts, to be heard by the other party, [and] to listen to the other party’s
perspective” (Coker & Gubernick, 2009, para. 5), with the goal of reaching
a mutually satisfying resolution.
Effectiveness of
Arbitration
Arbitration, on the other hand, is most effective in such areas as
commercial disputes, complex, multiparty construction conflicts (Morrison,
2011), business and international business disputes, where a binding decision
is necessary.
Drawbacks
Both the mediation and arbitration processes have drawbacks.
Although compliance with the resolution is high with mediation, it is not
binding (Henderson, 1991). Arbitration, as an alternative to litigation,
has shortcomings that include “1. limited discovery, 2. questionable evidence,
3. limited appeals, 4. the absence of meaningful appellate review, and 5. the
law to be applied is uncertain” (Vessenes, 1997, abstract). Arbitration
does not necessarily offer speedy resolution to disputes, nor is it always less
expensive. (Henderson, 1991, p. 19).
The American
Arbitration Association
The American Arbitration Association (AAA) offers dispute
resolution services, and is “the nation's largest full-service alternative
dispute resolution … provider, addressing disputes involving, but not limited
to, employment, intellectual property, consumer, technology, health care,
financial services, construction, and international trade conflicts” (http://www.adr.org/drs ).
The organization offers arbitrators and mediators, AAA
regulations, education and training services to “business and industry
professionals, employees and government agencies, as well as consumers” (http://www.adr.org/drs ).
The AAA could be helpful in my career should there be a need for case
administration, dispute avoidance and early resolution, or situations where
arbitration or mediation are necessary. Each of these alternative dispute
resolution options are designed to keep the conflict resolution process out of
the courts, bring conflicting parties together, and achieve a satisfactory
resolution.
Conclusion
I have briefly examined the procedures of mediation and
arbitration in conflict resolution, where mediation introduces an impartial
third party to empower the conflicting parties reach agreement and restore the
relationship. The resolution is mutually satisfactory, has a high rate of
compliance, but is not binding.
Arbitration involves determination of rights, often involves
depositions, documentation, and witnesses, and the resolution is determined
without the participation of the conflicting parties. The resolution is
legally binding. Mediation is effective in resolving disputes in the
workplace, divorce, neighbor situations, school, small claims, victim-offender,
etc. Arbitration is most effective in such areas as commercial disputes,
complex, multiparty construction conflicts business and international business
disputes, where a binding decision is necessary.
Drawbacks to mediation include a non-binding resolution, while
drawbacks to arbitration include no certainty that the procedure will save time
and money. The American Arbitration Association (AAA) is an organization
that offers mediation and arbitration services, education and training services
to professionals, employees and consumers that are designed to keep the
conflict resolution process out of the courts, bring conflicting parties
together, and achieve a satisfactory resolution. These services may be of
use to me in my career should I need to have professional assistance in dispute
avoidance or early conflict resolution, or in situations where arbitration or
mediation are necessary.
~ Susan
References
Abigail, R.
A. & Cahn, D. D. (2011). Managing conflict
through communication (4th ed.). Boston: Allyn & Bacon Pearson Education
Aliment, R.
J. (2009, Summer). Alternative dispute resolution in
international business transactions.
The brief, 38(4), pp. 12-18, 20-23. Retrieved June 11, 2011 from http://proquest.umi.com/pqdweb?did=1838505001&Fmt=3&clientId=74379&RQT=309&VName=PQD
Coker, C.,
& Gubernick, D. (2009,
October, 14). Building peace:
Mediation a better way to resolve conflicts. The register-guard, p. A.9. Retrieved June 11, 2011, from http://proquest.umi.com/pqdweb?did=1882817321&Fmt=3&clientId=74379&RQT=309&VName=PQD
Henderson,
T. R. (1991, November). Analysis of construction disputes and
strategies for cost minimization.
Cost engineering 33(11), p. 17.
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Morrison,
J. F. (2011, May 17). Steven A. Arbittier,
a ‘super lawyer.’ McClatchy –
Tribune business news. Retrieved
on June 11, 2011, from http://proquest.umi.com/pqdweb?did=2348780521&sid=4&Fmt=3&clientId=74379&RQT=309&VName=PQD
Vessenes,
K. (1997, February). The trouble
with arbitration. Journal of
financial planning, 10(1), p. 18.
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