Good Essay About Alternative Dispute Resolution

Introduction

Disputes in a company are inevitable. Since employees and employers have their own culture they tend to have misunderstandings. These differences in opinion may become a big problem to the extent that the people involved will seek legal processes. In this modern time, suing someone is not immediately the solution for disputes. There are appropriate and recent ways to settle disagreements between two parties.
Alternative Dispute Resolution is now the newest way to replace old ways of finding solutions to the clashes between two people. ADR helps reduce the number of litigations which are lawyer-assisted intercession.
Lawyers have the responsibility to provide their clients an array of solutions for problems. ADR is one of the solutions a lawyer can give to its client. In ADR lawyers will have to cite the pros and cons of litigation and ADR in solving disputes. However, now that there is shift in focus of consultation of the client and lawyer is more of the client-centered solution. ADR is the best example of providing a client-centered service to the lawyers’ clients.
This paper will tackle about the chapters involving chapter 3 mediation, chapter 4 law and ethics of mediation, chapter 5 arbitration, chapter 6 modern arbitration, chapter 7 selecting optimal ADR for clients and disputes and advantages and disadvantages mediation and nonbinding evaluation.
The paper will discuss about mediation, its advantages and disadvantages, arbitration, its nature and history, and its implication to today’s dispute resolution in companies, among the members of an organization and between people.

Mediation

In an interpersonal conflict the problem came out from the falling apart of relationship of two people because of some unknown factors. Negotiation is the best way to settle an interpersonal dispute which arose from misunderstandings sometimes because of petty reasons. This type of conflict resolution saves the disputants money, overcrowded court rooms, and preservation of relationship. Negotiation offers a complete control between the disputants and they are free to make their own answer to their disputes. If the both the disputants are willing to save their relationship, collaborative and cooperative, negotiation is the best way to achieve agreement.
The only downside of negotiation is when it can’t settle a dispute between the people involved. If the process of negotiation can’t settle a dispute another technique will be used to aid in the resolution of conflict. This is called negotiation plus or mediation.

Law and Ethics of Mediation

According to Montereycourt.gov, mediation is another form of alternative dispute solution which has a third party called the mediator. Furthermore, mediation is an informal, private, and amenable process of solving conflict by giving both parties practical and legal options (Montereycourt.gov, 2015). Montereycourt.gov, stated that the mediator helps two parties in agreeable solution which sometimes results in an enforceable contract agreed up by the two parties. According to Coltri (2009) mediation is technique of settlement with psychological sensitivity that sometimes comes out like psychotherapy. In addition, in this alternative dispute resolution it is important to protect participants from probable illegal or unconstitutional effects of mediation (Coltri, 2009).
The most important feature of mediation as it tries to provide solution to conflicts effectively is that it ensures that legal rights of an individual are not marred. However, there are also opinions about mediation. In an effort to protect one’s individual rights, it seems that there is an invisible veil that covers the people involved in mediation. In choosing to make things smoothly solved and not forcing adversarial forms of settling conflicts, parties involved do not see some violations on their individual right. This may lead to lack of consensus by both disputants because it was imposed on them that mediation should come up with a non-confrontational solution.

Arbitration

Arbitration is the process of settling an agreement by an arbiter. The arbiter or the third party will decide what the best solution is for the two parties. Unlike mediation, the third party in arbitration is the one in command in finding solution to the problem.
Arbitration before was very different on how it used now to settle conflicts. During early times, arbitrators are chosen based on what kind of dispute is being settled. For instance, a dispute between family members may be arbitrated by the town religious leader or elder. On the other hand, if the dispute is concern with business transactions, arbitrator is a merchant or a business man. In the traditional arbitration, the arbitrator maybe someone who is close to the parties involve who could then intervene and understand the people involved.

Modern Arbitration

Executory agreements to arbitrate surfaced which means future disputes should submitted to arbitration. This also gives the jury or court houses a limitation to meddle in someone’s disputes, thus it was changed in the turn of 20th century. Before arbitration is not enforceable but because of provisions made, the disputants only can suspend or stayed the arbitration, and permit the arbitration to finish; and federal courts requiring disputants to join the carrying out of the arbitration.
More and more companies are now using arbitration for future disputes. Like banks, residential services and credit card policies (Knoll, 2015). Furthermore, companies go as far as making their own rules and policies in arbitration. According to Knoll (2015), some arbitration clauses are unenforceable because the arbitration order is very unfair and one sided. The arbitrator’s decision is final and binding and attempts for an appeal are very rare (Knoll, 2015).

Selecting Optimal ADR Processes for Disputes and Clients

Though the use of ADR has been increasing there are still suitable ADR processes which will help in the resolution for disputes. Clients have their right to choose their AD process with the help of someone who can explain the advantages and disadvantages of the ADR.

Advantages of Mediation

For efficiency consideration, mediation is the right ADR for a conflict since will save money and time. According to Laurie (2009), obviously it is cheaper and quicker because the disputants will not ask for consideration, moving of the case, and hearings. Moreover, mediation is the most effective way of preserving one’s relationship to the other party. It allows both parties to decide on the solution of their problem without a third-party.

Disadvantages of Mediation

The disadvantage mediation has is the invisible veil which surrounds both parties. By thinking of their solution, both parties may have overlooked their individual legal rights. Since it a dispute resolution for minor conflicts it may not be used for deep rooted interpersonal disputes.

Advantages of Arbitration

Arbitration is less expensive too compared to judicial systems. According to Knoll (2015), arbitration is thought to make a faster solution for disputes and provide results appropriate for complicated cases because they unbiased people to judge the areas of disputes. The parties can also change some of the rules in dispute resolution but not all (Knoll, 2015). Arbitration is also a private dispute process. It is makes both parties be spared by court room noise and pressure and the evidences provided are more unperturbed.

Disadvantages of Arbitration

Since the decision of an arbitrator is final and binding, the chance of challenging is very difficult. The Uniform Arbitration Act stated that a party who wants to contest the result should prove that there was an evident impartiality at their end (Knoll, 2015). Another thing in arbitration clauses is that consumers can’t do anything about it but to submit themselves to the policy. They will be forced to sign papers because their chance of refuting arbitration clauses is slim.

Conclusion

The chapters provided are all essential for future dispute resolutions that I may encounter in the company I will be working. Knowledge of alternative dispute resolution will make a specialist in delivering a solution to conflicts in a company more discerning on how to resolve such cases of disputes. Knowing the nature of the dispute will help in choosing what ADR process will be used. Putting into mind the advantages and disadvantages of mediation and arbitration will help me determine which ADR will be effective in conflict resolution.

References

Coltri, L. (2009) . Alternative dispute resolution: A conflict diagnosis approach. 2nd Ed. USA: Pearson Learning Solutions
Knoll, J. (2015). Arbitration: Dispute resolution outside the court. Retrieved from  
http://www.open-spaces.com/article-v8n3-knoll.php
Mediation: Alternative dispute resolution. (2015). Retrieved from
http://www.monterey.courts.ca.gov/ADR/Mediation.aspx