People who come to a point of a dispute, and they want to settle their differences, have a few different venues available. In this article we will discuss the various options available for dispute resolution. Throughout we will compare and contrast the pros and cons of mediation vs the other available methods. By then end we will arrive an appreciation for the benefits that using a mediator provides as opposed to other available venues.
Although some people do opt for illegal methods and/or intimidation methods, those are not what we, as good citizens, want to encourage. So let's consider the legal methods of dispute resolution, shall we?
One possibility for dispute resolution is for both parties to work things out themselves through negotiations, or, in cases of more personal matters, a good heart-to-heart talk may sometimes do the trick. It would be great if everyone could solve their problems and walk away friends but in the 'real world' people often need a third party to take part in the negotiation process, so that is what the bulk of the article will focus on.
Historically, the third party who is usually involved in matters of any number of disputes is the court system. In cases of consumer disputes, contract disputes, criminal charges, family disputes and the like, the court system has almost always been the way to settle almost any dispute once-and-for-all.
Compared to just working things out, the court system is almost the 180 degree opposite. When two parties meet in court they usually work diligently to discredit the other while crediting themselves. The goal of each side is to overpower the other, and to win. The nature of the court system works in a way that causes each side to work for their own selfish gains, without considering what is good for their 'opponent.' The trial court playing field is a place of competition.
In lieu of the formalities and competitive nature of trial court alternative dispute resolution methods have been thriving over the previous decades. The two main camps of alternative dispute resolution (ADR) are called "arbitration" and "mediation." Arbitration is much like trial court in its competitive nature, but it lacks a lot of the formalities, and therefore, tends to save a lot of time and money.
During the course of the arbitration process parties present their cases to the arbitrator in a similar way that they would a judge. In arbitration, the presentation process is usually much less formal than in trial court, but the principle remains the same- WIN. Make no mistakes, arbitration is competitive. Once the arbitrator hears and considers the cases s/he makes a decision based on the evidence presented, and hopefully, thorough knowledge of the law. The arbitrator applies the law to the case and decides on an award for one of the parties. In other words, the arbitrator declares a winner.
Mediation, on the other hand, is cooperative in nature, as opposed to being competitive like trial court and arbitration. Mediation is also informal, as alternative dispute resolution usually is, saving participants time, money, and often headache. During the mediation process both sides do present their cases, but the essence of the process is completely different because at the end the mediator does not make any decision, and there will be no winner. The job of the mediator is simply to be an impartial third party facilitator of cooperation for the two parties. A good mediator will help the two parties to define the point(s) of disagreement and pinpoint the issues that are most important to each side. The beauty of the mediation process is that as a team everyone works together to come to a reasonable compromise which everyone can agree to. The mediation process is only complete when both parties voluntarily agree to a solution.
As you can see, the mediation process is not based purely on law, rather it considers the needs and emotions of the parties involved. And since everyone comes to a compromise needs not be a winner or a loser.
Mediation is also applicable to many situations that would not be conducive to bringing to trial such as solving disputes between children and their parents, or in-school mediation known as peer-mediation. The entire structure of the mediation process is cooperative, and often people who participate in it find that they are able to come to solutions that they never would have thought of without the mediation process.
In conclusion, mediation has the benefit taking some of the best aspects of both cooperative negotiation and trial court. On one hand, there is a third party who is there to help keep both parties focused on solving the issues at hand, and on the other hand, the mediation process encourages cooperation and compromise without declaring a winner and loser. In many cases the mediation process actually improves the relationships between the disputing parties.
It is important to emphasize is that the mediation process is less law-based than arbitration or trial court. Whereas with an arbitrator or trial court the decision must adhere to the law, final decision of a mediation case does not need to resemble what a judge would decide, being as it is a voluntary decision that two parties negotiate and agree upon. Therefore, a valuable trait of a good mediator is to have a thorough knowledge of the law and the court system in order that no party comes to compromise too much more than what they would have needed to compromise in a court of law. A well qualified mediator is someone who is also a certified and experienced lawyer and who has also served as an arbitrator.
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