 |
| Why we need arbitration and mediation. |
In the movie Willy Wonka and the Chocolate Factory, Veruca Salt repeatedly exclaims, “I want it now!”(Ultrasissi, 2009).This type of sentiment is one of the reasons why mediation and arbitration have become widely used to settle disputes. Increasingly, parties are electing to use these methods in lieu of costly and lengthy court procedures. While the results of mediation and arbitration have many favorable outcomes such as reduced expenditures, increased efficiency, greater flexibility, and high success rates, the functions and roles of these alternative dispute resolutions also have drawbacks which must be considered, and the American Arbitration Association provides individuals and organizations access to information and qualified professionals in this field.
The function of mediation is to facilitate communication between the parties in conflict by using a neutral third party to bring individuals to a mutual agreement. Although this form of resolution is often used to settle informal disputes such as those between children, co-workers, or in general misunderstandings, the formal type of mediation has a role in settling matters of conflict in cases which include divorce, child custody, and landlord-tenant relations. The effectiveness of mediation is quite significant and authors Cahn & Abigail state, “It is estimated that “once the disputants have agreed to mediate, at least 80% of the time they are able to work out an agreement that is acceptable to both of them” (Cahn & Abigail, 2014, p. 249). This approach offers parties greater adjustability and control, while reducing legal fees, and contributes to improved communication.
Whereas mediation is voluntary and assists parties in finding common ground and reaching a compromise, arbitration is a final and binding process wherein both parties have agreed to participate and abide by the decision. In such cases, the function of arbitration is to resolve matters by using an impartial third party with expertise in the subject matter, who after reviewing written information and evidence, will render a decision or award, which is legally binding, and cannot normally be appealed in the courts, except in cases where fraudulent actions by the arbitrator can be proven. (American Arbitration Association, 2015) The role of arbitration is to settle disputes such as those relating to commercial interests, international business, collective bargaining, auto insurance claims, or employment and business disputes. Arguably more efficient than cases which are tried in a traditional court of law, this process is less costly in terms of legal fees, reduced time due to less red tape, and while the arbitrators are bound by a code of ethics they are not constrained by former legal precedent or required to support their decisions by citing case law.
Divorce is one example of the use of mediation to defray legal expenses and streamline the process. For example, in cases of child custody the courts are incentivized to encourage mediation due to the overload of cases, best interests of the child, and acrimonious and lengthy disputes that arise from traditional court decisions. Therefore, when conflicting parties are able to reach a mutually satisfactory decision through mediation, the intent is to “make divorce procedures less divisive and potentially therapeutic, especially for children” (Emery, 1995, p. 379). This method encourages cooperation between the parties rather than competition.
As previously noted, arbitration is used in matters of collective bargaining. One example of such use involves police and firefighter unions and their procedures to enact an increase in wages and benefits. This resolution process is practiced because, “Arbitration systems for public sector workers, especially for police officers and firefighters, are typically implemented because these workers are forbidden the right to strike” (Ashenfelter & Hyslop, 2001, para. 6). Such alternative dispute resolution requires the parties to provide evidence subsequent to the decision and final award, as determined the arbitrator. Without the use of arbitration, negotiations and legal maneuvering would likely be quite costly and protracted.
A discussion of mediation and arbitration must include potential drawbacks. When considering the merits of mediation, one must also recognize some of the following weaknesses such as, fees incurred with no guarantee of agreement or any enforceable result, disproportionate settlement due to influence of one party, and no formal discovery process. Additionally, the shortcomings of arbitration may be what some consider a diminished form of justice, splitting of award rather than a one-sided victory, and lack of ability to appeal an unsatisfactory decision. While each method has limitations or potential weaknesses, even Abraham Lincoln, expounded on the benefits of alternative dispute resolutions. He wrote, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time” (as cited by Parris, 2013, p.7).
Prior to this assignment, I had never considered using my degree in Communications to serve as a professional mediator or arbitrator. The skills required for both of these positions are inherently linked to the skill set I have developed as a student in this field. Both the mediator and arbitrator require an individual adept at facilitating orderly communication from parties engaged in disputes, who are unable to come to a satisfactory resolution on their own. Learning about the American Arbitration Association and its functions has provided a new insight into a promising career path, which I plan to give careful consideration. Additionally, my abilities as a writer of technical publications could be used to produce documents either as a mediator, arbitrator, or for organizational papers such as training materials within this organization.
Just as the child villainess, Veruca Salt refused to compromise and met a most unfortunate end, individuals may do well to consider alternative dispute resolutions such as mediation and arbitration, thereby providing opportunities for mutual agreement and avoiding legal quagmires. Whereas, there are certainly instances in which parties must utilize traditional legal methods through the courts, organizations such as the American Arbitration Association provide information to the public on the use of mediation and arbitration to produce positive results which include expediency, lower fees, and increased communication between the conflicted parties.
References
American Arbitration Association. (2015). Arbitration. Retrieved from https://www.adr.org/aaa/faces/home
Ashenfelter, O., & Hyslop, D. (2001). Measuring the effect of arbitration on wage levels: The case of police officers. Industrial & Labor Relations Review, 54(2), 316-328.
Cahn, D. D., & Abigail, R. A. (2014). Managing conflict through communication (5th ed.). Boston, MA: Pearson Education, Inc.
Emery, R. (1995). Divorce mediation: Negotiating agreements and renegotiating relationships.
Family Relations, 44(4), 377-383. Retrieved from http://www.jstor.org/stable/584993
Parris, A. M. (2013). Alternative dispute resolution: The final frontier of the legal profession? Journal Of The Legal Profession, 37(2), 295-307.
Ultrasissi, (2009, September 17). Veruca Salt – I want it now (Willy Wonka and the chocolate factory) [video file]. Retrieved from https://www.youtube.com/watch?v=TRTkCHE1sS4
No comments :
Post a Comment