ADVANTAGES AND DISADVANTAGES OF MEDIATION I:Efficiency Consideration, Conflict Management and Prevention

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Conflict Management HRM624

Lesson 32

ADVANTAGES AND DISADVANTAGES OF MEDIATION I

Quotations

There are many occasions in life where it is possible to affect by forgiveness every object which proposes to

effect by resentment. Sydney Smith, Sermon: The Forgiveness of Injuries

Identify with the victims and you become one yourself. Victims make lousy litigators.

Russell Banks (1940 - ) U.S. novelist.

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the

lawyer has a superior opportunity of being a good man. There will still be business enough. Abraham

Lincoln (1809 - 1865) U.S. president.

Win your lawsuit and lose your money. Anonymous, Chinese Proverb.

This lesson builds your capacity to act as a good mediator or disputant. In this lecture we will have a look at

the various processes of ADR.

Negotiation

Negotiation is a kind of direct discussion or dialogue between and among disputants.

Broadly speaking, negotiation is an interaction of influences. Such interactions, for example, include the

process of resolving disputes, agreeing upon courses of action, bargaining for individual or collective

advantage, or crafting outcomes to satisfy various interests. Negotiation is thus a form of alternative dispute

resolution.

Negotiation involves three basic elements: process, behavior and substance. The process refers to how the

parties negotiate: the context of negotiations, the parties to the negotiations, the tactics used by the parties,

and the sequence and stages in which all of these play out. Behaviors to the relationships among these

parties, the communication between them and the styles they adopt. The substance refers to what the

parties negotiate over: the agenda, the issues (positions and more helpfully interests), the options, and the

agreement(s) reached at the end.

Arbitration

Arbitration is reference of a dispute to an impartial person or persons, called arbitrators, for a decision or

award based on evidence and arguments presented by the disputants. The parties involved usually agree to

resort to arbitration in lieu of court proceedings to resolve an existing dispute or any grievance that may

arise between them. Arbitration may sometimes be compelled by law, particularly in connection with labor

disputes involving public employees or employees of private companies invested with a public interest, such

as utilities or railroads.

Adjudication

Adjudication is a way of resolving disputes or controversies, usually through action in a court of law. The

issues settled by adjudication may be civil or criminal; they may arise between private parties or between

private parties and public bodies. Issues are settled according to specific procedures involving submission of

proofs and presentation of arguments for each side. The dispute is argued before an impartial judge and jury

or judge, both of whom are empowered to decide in favor of one of the parties

Litigation

A controversy before a court or a "lawsuit" is commonly referred to as "litigation". If it is not settled by

agreement between the parties it would eventually be heard and decided by a judge or jury in a court.

Litigation is one way that people and companies resolve disputes arising out of an infinite variety of factual

circumstances.

Lawsuit or Action, legal action brought between two private parties in a court of law is termed as litigation.

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Conflict Management HRM624

In American law, a lawsuit is a civil action brought before a court in which the party commencing the

action, the plaintiff, seeks a legal remedy. One or more defendants are required to respond to the plaintiff's

complaint. If the plaintiff is successful, judgment will be given in the plaintiff's favor, and a range of court

orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or

compel an act. A declaratory judgment may be issued to prevent future legal disputes.

Efficiency Consideration

Time and money consideration-the efficiency arguments were the original impetus for the ADR movements

in the United States. Early comments on the litigation explosion and the need for alternatives prominently

cite the high cost of litigation, the long delays to trial, and the burden on court systems of our litigious

society. Thus, many early efforts to create ADR programmers focused on considerations of immediate

savings of time and money for clients and courts. When these programmers were evaluated, researchers

focused primarily on comparing the time required to mediate cases to settlement with that required to

litigate to judgment, as well as on the money spent on moving the cases to their conclusions.

It is beyond refute that mediation is cheaper and quicker than litigation. Mediation is an informal process

that does not require discovery, pleading, motions, practice, hearings, or rules of evidence.

The efficiency of mediation is often compared with that of litigation because it is assumed that cases that

are mediated would otherwise be litigated. If mediation is compared with their ADR processes, such as

arbitration and non binding evaluation the pictures become still more cloudy. Arbitration ranges from a

highly informal inexpensive and rapid process to something as expensive, slow, and complex as the most

bureaucratically snarled law suit.

Another way of viewing efficiency considerations is to use the perspective of conflict theory. Litigation,

arbitration, and non binding evaluation are dispute resolution processes that approach conflict from a

positional-bargaining paradigm. If a longer-term view is taken, it seems clear that mediation emphasizing the

use of principled-bargaining techniques is more efficient than mediation based on a positional bargaining

model.

Mediation is more efficient than informal adjudicative and non binding evaluative processes depending on

the perspective taken.

Conflict Management and Prevention

It is the area of reducing and preventing conflict that mediation really shines, relative not only to litigation

but also to arbitration and non bonding evaluation. It is known from the consideration of the conflict

theory that using cooperative principled-bargaining techniques tends to short circuit a competitive conflict

cycle, promote cooperation, build mutual trust, and create solutions that better meet all disputants' most

deeply seated interests.

Mediators act directly on conflict cycles, reducing conflict escalation and promoting cooperation. It

increases efficiency of dispute resolution behavior, increases likelihood of settlement, increases likelihood

that settlement will be good for all concerned. It lessens likelihood of conflict spreading and intensifying it.

If mediation does not result in agreement, it will make it easier to use other forms of dispute resolution. It

improves and preserves trust and relationships.

Summary

We tried to learn that mediation is a good alternative to resolve disputes because negotiation failed to do the

same. Mediation is a good technique to resolve conflict as compared to court-related procedures like

litigation. We also learnt that informal mediation may be cheaper than formal mediation. It may be noted

that informal mediation is more prevalent in our society but it is likely to decline in future. As self-interest

based social relations are developing in this country, the conflict will become rampant and we may be

pushed to establish formal mediation systems.

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