Nov 26, 2020 in Coursework

Alternative Dispute Resolution

Negotiation

Negotiation is considered the simplest form of alternative dispute resolution. During negotiation, the conflicting parties have an informal meeting that can be accompanied with lawyers. In the course of the informal discussion, parties can express their concerns and define differences to reach a consensus on the issue without legal intervention. Due to the fact that no third party is admitted to the discussion, negotiation is not based on sophisticated procedures (Cross & Miller, 2011). In order to gather an informal meeting, a corporate manager can collect the necessary documents to reduce the confrontation and ensure a win-win outcome for both parties. Even though the dispute is impossible to resolve, the preparation process can simplify the managers effort while preparing for the next step of dispute resolution.

Negotiation has a number of advantages over other methods of alternative dispute resolution. First of all, this method is the simplest one because it does not require participants to carry out a sophisticated analysis of the conflicting issues. Neither does it require the direct participation of the parties attorneys (Cross & Miller, 2011). Second, the dispute presupposes independent resolution of the conflict through mutual understanding of a situation. As for the disadvantages, it should be stressed that negotiation is not always successful because there is a chance that both parties involved in dispute approach the issues in a subjective, unreasonable way.

Negotiation can serve as the resonator of decisions that a third party employs to reconcile the dispute. They can also serve as facilitators of neutral cases analysis, which contributes to the objectivity of the resolution process. In addition, negotiation can be regarded as a preliminary step for the parties to reach an agreement before they introduce the issue to the court. Therefore, negotiation is also the safest method for solving problems in a corporate environment.

Mediation

During mediation, the conflicting parties invite a neutral third party, which is also called mediator. This is the oldest form of resolving disputes based on counseling each party through conservation during which a mediator explains the situation to both parties and defines seriousness of the problems (Cross & Miller, 2011). Although a mediator can provide a list of possible solutions, he/she does not take part in making a decision concerning the dispute.

Mediation involves few procedures and courtroom decisions because conditions can be tailored to meet the parties requirements. Additionally, unlike litigation, mediation is less likely to lead to adversarial effects because a mediator tries to reconcile the parties and make them come to a mutual agreement. What is more important is that mediator seeks to reduce antagonism between the parties involved. Finally, parties are allowed to select the mediator while resolving a dispute. In litigation, parties are not authorized to choose a judge (Cross & Miller, 2011). Apart from advantages, mediation has a number of shortcomings. Specifically, mediators are usually hired for a fee. Due to the fact that a mediator does not impose pressure on the parties, the dispute resolution can be suspended for an unlimited amount of time.

Nowadays, the mediation can combine the principles used in arbitration. For instance, the parties admit that a mediator can provide a legally binding solution if the dispute is impossible to resolve otherwise. During arbitrated mediation, the parties prefer settling the conflict through mediation first. In case dispute is not resolved, it will be confined to arbitration. In this context, mediation could be enhanced by legal regulation provided the parties cannot reach a consensus.

Arbitration

In contrast to negotiation and mediation, arbitration is considered a more formal method of alternative dispute resolution. Nevertheless, the level of arbitration effectiveness is much higher as compared to other methods of dispute resolution because it is based on legal methods of conducting meetings. Attorneys involved into the dispute can resort to arbitration when mediation and negotiation results turn out to be a failure. Both parties concerned and lawyers should be aware of the ethical obligations. In this respect, the task of the legal representatives consists in monitoring the dispute in accordance with the established legislature, whereas the task of the disputing parties lies in observing these rules. According to Pointon (2011), The law allows the parties to choose the procedural rules and substantive law applicable (p. 491). At the same time, it should not contradict ethical and moral policies. Before a corporate manager resorts to arbitration, he/she should consider the case through mediation or negotiation.

The main strength of arbitrary procedures is confined to the presence of legitimate actions that restrict parties decisions. The attorney should take control of the process to ensure that the dispute is conducted in a legal context. Additionally, arbitration is more likely to lead to positive results in dispute resolution as compared to less controlled methods (Pointon, 2011). Despite the advantages, parties that participate in arbitration are often under the greater pressure, which creates problems in understanding the situation. The companies that are engaged in arbitration can lose their reputation. Finally, this method of dispute resolution is the most expensive.

Arbitration is also called litigation because it can be enforced by various treaties, legal acts, constitution, and the judicial system. Therefore, disputes resolved by means of arbitration are the most effective ones. What is more important is that parties are restricted in their decisions because legislature is more decisive while reaching a consensus. Attorneys must provide an in-depth analysis of all the aspects of the conflict before they can develop a set of recommendations for their clients.

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