Contrasting of Negotiation, Mediation and Arbitration
Negotiation is a process of resolving conflicts where the disputing parties reach an agreement through discussion. Mediation refers to the process of conflict resolution where a third party is used to facilitate the mediation process through his or her effective communication skills. The third party assists in searching for solutions and the clarification of issues and concerns to allow parties to understand the interests of each other. Arbitration refers to the process of conflict resolution where the third party decides the dispute. The arbitrator is the one who plans for the meeting and makes a decision based on the presented evidence without taking sides. The decision made by the arbitrator is binding, and the affected parties are required to abide by the outcome. Arbitration is a more formal process as compared to mediation because an arbitrator can be a professional.
There exist some similarities between mediation, negotiation and arbitration. The goal of negotiation, mediation and arbitration are to enhance a fair resolution based on the issues at hand. Negotiation and mediation consume less time and are less expensive because the process is not formal. Mediation and arbitration make use of a neutral party to aid in the process of conflict resolution. The process of mediation and negotiation are non-binding because the dispute is only resolved when the parties agree, while the arbitration process is binding.
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Negotiation Process
The negotiation process starts with preparation and planning where conflict has to be recognized and the ground leading to the dispute be identified. The definition of ground rules is the second step where the procedure and constraints for negotiations are identified (Wallensteen, 2018). The conflicting parties exchange their demands or proposals for the negotiation process. The exchange of initial proposals or requests will be followed by clarification and justification of the underlying issues without any form of confrontation. All the conflicting parties will have an opportunity to bargain and solve the underlying problems and concerns. Both parties then make the concession. There are situations where parties fail to agree thus damage future relationships. The closure and implementation are the last stage in the negotiation process where parties formalize on the issues agreed. Relationships are strengthened in the process where the interests of each party are addressed. The process is non-binding because the agreement is reached upon by the affected parties.
Mediation Process
The mediation process involves a neutral party to aid the conflict resolution process. It starts by introductory remarks by the mediator and the affected parties. The mediator introduces all the people who are present and states his or her goals and rules to enhance a smooth process. The disputants are given an opportunity to make their statements by describing the disputes and presenting some ideas that can be used to resolve the issue. The third step involves the gathering of information regarding the issue to allow the mediator to build a rapport between the parties and facilitate the process. The gathered information helps in identifying the problem to enable the mediator to establish a common goal for mediation and solve the issues (Moore, 2014). Bargaining and generating of options to settle is the fifth stage in the mediation process. The third party proposes probable solutions where the parties discuss to reach a final solution. The closure is the last stage that entails the implementation of the issues agreed. The process is non-binding because the dispute gets solved once the affected parties reach an agreement.
Arbitration Process
The process of arbitration requires an arbitrator to act as a third party and make the final decision. The process starts with the setting of the stage where parties agree voluntarily or through a contractual obligation to take part in the process. Specific items of the process are agreed upon by all the parties. The standard American Arbitration Association rules can be used, or the parties can choose to customize the rules to fit the exceptional dispute situation (Menkel-Meadow, 2015). The selection of an arbitrator is the second stage that constitutes the selecting of a neutral person who knows the problem at hand to enhance a fair judgment. A preliminary hearing is set to help in procedural components of discovering the evidence. The hearing process is the next step where parties have a chance to present the available evidence, and the opposing party will have to oppose the submitted evidence. After the hearing, the arbitrator takes time to deliberate on the evidence before making of the award. The issuing of an award is the final stage where the arbitrator makes the decision that is considered to be binding to all the parties.
Pros and Cons
The advantages of negotiation are that the parties agree to take part in the process actively and the decision is based on the party’s needs and interest. The process saves time and is less expensive as compared to arbitration. The approach provides the parties with flexibility thus fostering cooperation. The disadvantage of this process is that it is not a must for parties to reach an agreement hence parties can sabotage the process. Also, parties have control of the process that leads to bias.
The advantage of mediation is that the process is quicker compared to arbitration. It provides the parties flexibility because the process is non-binding. The issues cannot be shared with the public, and this promotes confidentiality. The disadvantage of mediation is that the process can be unsuccessful if either party holds information. Time and money can be wasted if parties fail to agree on the process and outcome. There are situations where the mediator can withdraw from the proceedings, and this is wastage of time and resources.
Arbitration is advantageous because the arbitrator makes the decision that is binding. It is less costly than the court system. There is privacy since the proceedings can be held in a private place. The arbitrator ensures that all parties have control of the dispute resolution process.
The cons of arbitration are that it is difficult to appeal the arbitrator’s decision. The process is more costly than negotiation and mediation because parties have to cater for the costs. The arbitrator’s standards are not clear, and this can lead to a less favorable outcome.
Best ADR Process
An employee/employer dispute can be solved through mediation to ensure that the issue is mutually solved. The approach is time-saving and less expensive as compared to arbitration. The mediator assists in restoring the communication that had been broken between the employee and the manager. Mediation is effective because it enhances confidentiality since the complaint will not be made public thus protecting the image of the company. Mediation assists in building the fractured relationship to foster productivity.
A family dispute over land left to several members in a will can be solved through mediation. A mediator will play an integral part in helping family members reach an agreement (Singer, 2018). The process will ensure that there exists a healthy family relationship and members collaborate in the process of sharing the disputed land.
A dispute between neighbors concerning a loud barking dog can be solved through negotiations. The neighbors will recognize the issue and define grounds on how it is going to be solved. Each neighbor will present his or her demands, and a concession will be reached. The decision is non-binding because it is dependent on whether all parties will agree on the terms.
Arbitration is the best process in solving contractual disputes because an arbitrator who knows about the issue at hand will help the parties reach an agreement. The arbitrator will use the presented evidence to make a decision that is binding to all the parties.
References
Menkel-Meadow, C. (2015). Alternative and Appropriate Dispute Resolution in Context Formal, Informal, and Semiformal Legal Processes.
Moore, C. W. (2014). The mediation process: Practical strategies for resolving conflict. John Wiley & Sons.
Singer, L. (2018). Settling disputes: Conflict resolution in business, families, and the legal system. Routledge.
Wallensteen, P. (2018). Understanding conflict resolution. SAGE Publications Limited.
