Mediation: an Alternate way of Dispute Resolution

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Mediation: Alternate Dispute Resolution (ADR) is still not widely known to society, but is a successful way of settling differences. Agreement is an important aspect of civil action proceedings in both state and civil courts, and is an essential tool for resolving disputes involving civil agencies. The most common types of conflict that result in agreement are those involving contracts, family law matters, and personal injury or employment disagreements. In a survey of US business leaders, many acknowledged the benefits of agreement over other dispute resolution methods for commercial sale conflicts. More specifically, the directors observed in the study believed that negotiation conserves commercial relationships far better than arbitration and that it is superior to arbitration in terms of time and money saved.

An agreement can be a brief, informal discussion or a lengthy, listed conference. It can take place in a neutral location, such as the mediator’s office. Both parties agree to the discussion and no one is obligated to take any particular action or do anything they don’t want to. This differentiates it from arbitration where the arbiter, like a judge, can bring down a ruling that must be followed by both parties.

Principles of Mediation

Every ADR medium has its own introductory principles which are conducive to achieving positive outcomes. Just like other processes, agreement has its own fundamental principles that prove instrumental in resolving conflicts between the concerned parties in a collective fashion. Parties opting for agreement over litigation do so mainly due to these core principles that make this process more effective. Agreement is usually opted for settling family and community related issues, in lieu of seeking justice from Courts.

The agreement process generally follows five introductory principles, which should be strictly followed by both the middleman and the parties to ensure a successful outcome. These introductory principles are as follows:

  • It is important for parties to share freely:  No one should be forced to intervene, instead it should be up to the parties to decide whether to intervene or go to court. Parties have their voluntary participation in the agreement process. When people know they can leave at any time, they are more likely to cooperate. Instead of being led to an understanding by a third party, they are able to drive the process towards agreement by engaging their own free will and sense of purpose and driving the process toward agreement. If they drive the process, they are more attached to its outcome.
  • In the process, confidentiality is important: There must be no disclosure of the middleman’s confidences within the contract unless the middleman is given authorization to do so. This is the case unless someone has a felonious intent or acts that endanger the tone of the contract. For further proceedings (except with both sides’ express authorization).The process of exploring fears and anxieties must be perceived as entirely private for people to feel safe. Information given in the agreement is kept confidential and cannot be used in court proceedings, neither by the intercessors nor by the court to determine why the agreement failed.
  • Unprejudiced intercessors:   The impartiality and neutrality of the middleman is essential. He/she must only observe procedural matters, not make any judgement, provide advice or advocate a result. It is important that the parties involved accept him/her as someone devoted to reaching a resolution and who ultimately aims at satisfying both sides of the dispute. As such, the mediator must be conscious that his/her character, status and methods can create a sense of favouritism towards one party – which would be detrimental to achieving an agreement. If there are doubts regarding the fairness and objectivity of the mediator, then this role cannot be fulfilled.
  • Agreements must be settled to the satisfaction of all parties: People in disagreement are responsible for defining the problem, setting the docket, and deciding the outcome. It is only through an agreement between the parties that the agreement procedure can begin. In similar cases, agreement can only be used to evade the court process and maintain the status quo without both parties intending to resolve the disagreement. A middleman needs to know how to explain the advantages of similar disagreement resolution to the parties, so that they themselves freely agree to be part of similar processes. If the parties express a need for similar, it is important for them to be informed about the option of intervening in the agreement process at any stage. The principle of amenability applies to all stages of the proceedings.                 Parties and middlemen can withdraw their cases at any time and also transfer them to a judge.                                           In the event that middlemen feel that parties have turned down from the agreement or that they are actually more opposed than they were when the agreement was launched, they can intrude. The introductory principle in the process of agreement is that the agreement procedure shouldn’t harm the parties in any way, but contribute to the resolution of their disagreements. The agreement is only a supplement to the court proceedings, so it cannot prevent a party from exercising their right to access court.
  • There is no prejudice to other procedures as a result of the agreement:  If the agreement were seen as an enforced procedure or bone that removes someone’s rights, it would restrict creativity and increase the possibility of resistance.

Who is appointed as Mediator and their role?

The middleman is still typically a qualified professional with specialized experience in fostering relationships to help parties come to an agreement that satisfies both sides. To meet the broadening use of mediation, both the American Bar Association and the Association for Conflict Resolution have encouraged countries to develop formal mediator guidelines. In order to become a bona fide mediator, individuals must obtain training and experience in mediation and agreement totaling between 20 and 50 hours. Although using a certified mediator is not mandated, those with such qualifications often prove more successful. The relatively small cost of such an expert is usually thought to be worth it due to the increased likelihood of resolution they can bring.

An impartial third party helps parties reach a mutually acceptable agreement by relating issues, exploring areas of agreement, and exploring concessions. In general, the middleman will allow each party time to describe the circumstances that led to the disagreement. As a result of this analysis of data, a middleman assists each party in discovering the interests and judgments that can lead to collective success.

Benefits of Mediation

Agreement offers a multitude of benefits compared to arbitration, action, and concession. It fosters cooperation and understanding between parties, rather than the competition a scenario involving action would cause. This subsequently leads to fewer negative feelings and distrust between both sides, as opposed to if they attempted to out do each other. The alternative to action is agreement, which is a less expensive way to resolve a dispute. It is less valuable than action and offers a fairly prophetic price, which is paid to a middleman. In Arizona, for example, trained intercessors typically charge approximately $250 per hour. In addition to attorney’s fees, action fees can include filing a suit and ancillary fees as well.

Lastly, an agreement can be a much faster process than an action. Negotiations aren’t complicated processes, and each session can last from two to three hours. These are particularly helpful in family law cases, where prolonged legal disputes may affect children emotionally and cognitively. Trials, which can take months to prepare for and weeks to conduct, can have an unfortunate effect on children and create pressure. Third, agreement provides a confidential means of resolving disputes. In the same way, while a court decision becomes public knowledge, an agreement reached by both sides remains confidential. Parties can keep all of their information to themselves, since agreement takes place behind closed doors. Separating couples or those dealing with sensitive information may find this type of seclusion particularly appealing.

Negotiations eventually resolve disagreements between disputing parties. Because there are no complex rules of procedure and substantiation, parties have great flexibility and can acclimate the breadth of the agreement to bandy whatever motifs they feel are important. Despite its numerous advantages, negotiations are not always the fastest way to resolve a disagreement because parties sometimes need a fair-binding outcome that will result in scores to resolve their disputes. Although agreements can resolve difficulties, they can also reduce aggression and enmity between parties.

Is Mediation Successful or Not?

A well-known term in International Law is “mediation.” In International Law, it refers to the act of interposition by a neutral and friendly state in order to restore or to preserve peace between two warring states or those on the brink of war. It is sometimes used as a synonym for intervention, but mediation differs from that act in that it is purely friendly.

At one level of perception, mediation can avoid the pitfalls of litigation. Litigation is known for its difficulties in resolving disputes.

Broadly speaking, these are the following difficulties:

  • Delay
  • Expenses
  • A rigidity in procedures and a lack of flexibility
  • Parties’ participation is reduced
  • Mediation is the most frequently used ADR method to resolve these litigation pitfalls.
  • Mediation may involve several stages, such as:
  • Statement of purpose
  • Parties’ opening statement
  • Setting the agenda and summarizing.
  • Issues are explored.
  • Caucuses or private sessions
  • Session of joint negotiations
  • Consensus

A lot depends on the nature of a dispute. The more complicated a matter, the more private meetings would be required to prepare the ground for a joint meeting. Depending on the situation, a mediator can adopt a facilitative or an evaluative approach. A mediator aims to avoid opinions and judgments, instead of facilitating and encouraging parties to communicate openly and disclose their interests and priorities. During this process, the mediator is able to locate the points of difference between the parties, as well as the areas of controversy or dispute. He may then assist them in bridging these gaps.

It is the mediator’s role to act as a facilitator in mediation. The mediator is not an adjudicator. In contrast to the judge in a traditional court setting or even an arbitrator, a mediator is neither an adjudicator of fact nor an arbiter of dispute. In his role, the mediator facilitates the parties before him towards resolving the dispute in a purely voluntary way. Mediation is neutral. It resembles the neutrality of a judge, but its role is completely different from that of a judge. The mediator doesn’t deliver judgment or impose terms on the parties.

Here are four reasons why mediation is an effective ADR process:

  1. There are no court rules or legal precedents in mediation. Mediation does not impose a decision on the parties. Instead of adversarial forums, the mediator encourages the parties to resolve disputes in a business-like manner. There is no fixed solution in mediation. Parties can develop creative solutions to resolve matters and the solution rests with them.
  2. The mediation conference takes place in a private setting, such as a conference room at one of the arbitration associations. Mediation is confidential.
  3. Savings in time and costs – Mediation generally lasts a day, though complex matters may require more time due to highly technical issues and or multiple parties. Mediation usually results in substantial savings in costs due to the absence of formalities associated with litigation.
  4. Parties have control over their participation in mediation. They can terminate their participation at any time during mediation. Mediators assist parties in retaining control over the negotiation.

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