Compare and contrast negotiation, mediation, and arbitration.
Negotiation, arbitration, and mediation are three alternative dispute resolutions that are commonly used. Let us discuss the meaning of each separately and what it entails.
Negotiation
Negotiation is a dispute resolution method that involves two parties in a conflict coming to a settlement that they both agree on. Negotiations are done through discussions between the disputing parties or their representatives without involving a third party. In this case, each party consults a lawyer before reaching an agreement on the matter so that they are aware of their duties and rights regarding the matter that they are solving (CLG, 2018) .
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Mediation
Unlike negotiation, mediation involves the incorporation of a neutral third party who assists the conflicting parties to reach a solution. This third party is referred to as a mediator, and it is their job to facilitate communication between the two parties. The mediator ensures that there is an honest, fair, and impartial communication process between the parties. However, a mediator does not take up the role of an arbitrator or a judge. They are completely neutral and they do not provide counselling or offer legal advice. They simply aim at reaching a solution without having to impose it. Upon reaching a decision, the two disputing parties are expected to sign a Memorandum of Agreement, which is a written agreement regarding all the facts. The parties are encouraged to consult a lawyer before a mediation so that they are aware of their duties and rights regarding the matter that they are solving.
Both mediation and negotiation are less time consuming and less expensive compared to court action.
Arbitration
Arbitration is a dispute resolution method that also incorporates a third party. However, it is different from mediation in that it is the third party who makes the decision or resolution. The arbitrator listens to the facts of the case that is presented by the conflicting parties and makes a decision just like a judge would. The decision made by an arbitrator is final and binding for the two parties. This decision may be filed in a Court and be enforced as if it were just like a court judgement. Arbitration may be used in divorce disputed, insurance claim disputes, or gas and oil disputes.
In this case, the arbitrator organizes a meeting between the two conflicting parties and all the issues that need to be resolved are raised. Both sides are then given the opportunity to present all their facts and evidence to support their case. Once all the evidence has been presented, he will issue a decision that is binding to both parties. The process of arbitration takes up a lot of time and money (CLG, 2018) .
Explain the role of the mediator in a mediation and discuss what you think are the most important qualities a mediator should have to be effective
A mediator is an individual who intervenes between two partied that are in a dispute. Intervention is the process whereby a third party comes between an ongoing relationship with the purpose of helping the involved parties. The mediator has the duty of being a catalyst or a facilitator, and his presence is supposed to provide the discussions with a constructive direction. It is hoped that the mere presence of a mediator will result in a subtle pressure upon the parties to cooperate and coordinate all efforts towards resolving the conflict. The mediator is supposed to facilitate the exchange of information, expectations, and desires of the parties to each other in a non-threatening, objective, and unemotional manner.
The mediator should help parties to:
Define their problems and clarify issues.
Generate options and explore the alternatives.
Come up with mutually acceptable agreements.
Develop and implement a more effective negotiation or problem-solving procedure.
Identify, consider, and understand the needs, concerns, and interests of each other.
Establish and build more productive and respectful working relationships.
Establish realistic expectations.
Improve or open up communication between them (Moore, 2014).
Neutrality and confidentiality are the most important qualities a mediator should have to be effective. Both parties should feel secure and comfortable discussing the details of their issues with the mediator without feeling pushed to a certain direction. It is also important for the mediator to maintain confidentiality, because this encourages openness of the involved parties and also allows them to fully explore their issues without feeling judged.
Do you feel it’s important for them to have a legal education if they are going to mediate legal disputes? Why or why not? What would some of the challenges be if they were not legally educated?
I believe that it is important for a mediator for legal disputes to have a law degree and legal experience because mediation is assumed to be a natural extension of legal training, and this skill is readily acquired by attorneys. Secondly, most disputes incorporate some very complex legal matters, and this makes it necessary to have some legal experience to ensure satisfactory and just conclusion. If the mediator is not legally educated, then it might be challenging for them to understand some of the legal matters that come with these complex cases (Currie, 2018).
References
CLG. (2018). Negotiation, Mediation, and Arbitration | Calgary Legal Guidance. Retrieved from http://clg.ab.ca/programs-services/dial-a-law/negotiation-mediation-and-arbitration/
Currie, C. (2018). Should A Mediator Also Be An Attorney?. Retrieved from https://www.mediate.com/articles/currie.cfm
Moore, C. (2014). The mediation process . San Francisco, CA: Jossey-Bass.
