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Essay About Arbitration And Mediation

Mediation And Arbitration Essay

Mediation is defined as an intervention to settle a dispute: the intervention by a third party between two sides in a dispute in an attempt to help them reach an agreement (www.msn.com). Arbitration is defined as the process for resolution of disputes: the process of resolving disputes between people or groups by referring them to a third party, either agreed on by them or provided by law, who makes a judgment (www.msn.com). The definitions have been established and it is now time to ask a few questions. What are the advantages and disadvantages to mediation and arbitration in the effort to resolve a dispute? What are the practical consequences of the Supreme Court's decision in the Waffle House case to the implementation of arbitration in the workplace? After considering the consequences, does this mark the end of arbitration agreements as a means of keeping employment disputes out of the courts? These questions will be answered in the following paragraphs that will describe the advantages of "med-arb" in conjunction with conflict resolution. For purposes of this case assignment, the term "med-arb" will refer to any reference combining mediation and arbitration in sequence.

Advantages

· Resolution can be obtained within a reasonable time.

· Resolution can often be achieved at a reduced cost, mainly because the parties will need to educate only one neutral about the facts and legal issues involved.

· A med-arb proceeding allows the parties more control over the process by giving them the opportunity to pursue a consensual settlement during the mediation phase, but also promising finality by assuring an end to the dispute, if not by agreement then by binding arbitration.

· A combined alternative dispute resolution proceeding may enable the parties to narrow their dispute substantially during the mediation phase, often leaving only a few remaining issues to be arbitrated. By agreeing to binding arbitration of the remaining issues, the parties can preserve the fruits of their partial agreements and prevent the mediation from failing.

· Med-arb may also enhance the parties' ability to select a form of arbitration that maximizes their control over that phase of the process as well, for example, by limiting the arbitrator's discretion to a choice between the parties' best offers, or within the range bounded by those offers.

Disadvantages

· The parties' willingness to share information candidly with the neutral during the mediation phase of the proceeding may be inhibited because they know the mediator could later become the arbitrator.

· The neutral's conduct of the mediation phase may be inhibited because the neutral knows that he or she will become an arbitrator if...

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The Alternative Methods of Dispute Resolution Essay

976 Words4 Pages

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Alternative methods of dispute resolution (ADR) are methods of resolving a dispute without resorting to using the courts. The fundamental principles of Alternative Dispute Resolutions are Negotiation, Tribunals, Conciliation, Arbitration and Mediation. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements. The use of these methods helps in bringing justice to all people concerned with civil matters.

The most obvious and most cost effective way of resolving disputes is by negotiation. It is where the two parties get together and discuss the points of…show more content…

As the mediator is a neutral member of the party, their views are not generally taken into account and this helps because this way the mediator can be seen to show no bias to either side. However, sometimes the opinion of the mediator can be taken simply to resolve the matter; in this case, the mediation becomes more of an evaluation exercise.

The main disadvantage of using mediation is that there is no guarantee the matter will be resolved, and it will be essential to go to court after a failed attempt at it. In such situations, additional cost and delay result from trying mediation. Another disadvantage of using mediation is that it cannot set precedents for future cases, unlike the courts, since each matter using mediation is seen to be based on the individual rights and wrongs of the case. Though matters are not set in precedent, they can be referred to in order to settle the dispute more steadfastly.

Conciliation is similar to mediation, as a neutral third party helps to resolve the dispute. The main difference is that a conciliator will suggest a compromise and sometimes the settlement between the parties and generally play a more active role. The method of conciliation is often questioned as, due to the more active role, the conciliator can become biased towards a certain party. The use of a conciliator

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