Mediation and Alternative Dispute Resolution Term Paper

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Alternate Dispute Resolution

Mediation and Conflict Resolution

Mediation is a process which brings two opposing parties to a table in the attempt to encourage them to develop their own resolution to a dispute. The traditional means of conflict resolution, of antagonistic litigation is costly, and creates a win-loose atmosphere between the parties. Through mediation, the two parties have the opportunity to create their own solution. Mediated agreements tend to lesson the adversarial roles which disagreeing parties play, and their agreements tend to have a great degree of staying power, since the agreements are voluntary. Although many different mediation, and alternate dispute resolution (ADR) methods are presently in use, arbitration and direct mediation are the most common. Other methods are often simply variants of these two ADR techniques.

In mediation, one or more neutral individuals are selected to assist the parties at conflict in negotiating a compromise. Mediators do not have the authority to make a decision in the case, but they can often facilitate communication. Where a compromise cannot be reached, the claim must be resolved by some other method, usually litigation or arbitration.

By contrast, in arbitration a neutral individual or panel of individuals is selected to consider the evidence at an informal hearing and reach a decision on the claim. Typically, arbitration is "binding," meaning the arbitrator's decision will be recognized and enforced in a court of law, and the parties cannot litigate the claim in court. (Ellis, 1996) Accordingly, in binding arbitration, arbitrators serve as a substitute for the judge and jury. In some instances arbitration may be "nonbinding." In this type of arbitration, the decision of the arbitrator is advisory and either party may elect to ignore the decision of the arbitrators and litigate the claim in court.

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ADR methods may be used either as a result of a legal mandate (sometimes referred to as "imposed" ADR) or voluntarily as a result of an agreement between the parties ("contractual" ADR). Since the right to trial by jury in most cases is constitutionally protected, legally imposed ADR is rarely binding on the parties.

Typically, mediation and binding arbitration are the result of a voluntary contractual agreement between the parties. Courts and legislatures generally recognize that individuals may elect to resolve their disputes by some method other than litigation and may, in the case of arbitration, waive their right to a jury trial. As a general rule, courts will enforce agreements to use ADR techniques as long as the agreement is properly and fairly made.

At the heart of these dispute resolution attempts is the desire that these systems are created to provide a structured approach to identify, discuss, and resolve conflicts that have been transformed into disputes. The disputes that are managed by such systems include a broad range of issues from interpersonal conflicts such as some forms of sexual harassment to the discontent of union members with some feature of their contract. (Gleason, 1997)

Theoretically, the agreement to use ADR methods can be made after a legal dispute arises. In practice, agreements to mediate or arbitrate are difficult to obtain in the heat of an actual legal dispute. Factious parties are traditionally hostile toward such agreements. In the event of the presence of an attorney, parties may already favor jury trial with its….....

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