Rate this paper
  • Currently rating
  • 1
  • 2
  • 3
  • 4
  • 5
4.38 / 8
Paper Topic:

Mediation and Arbitration

Mediation and Arbitration

Achieving Synergy

Mediation and arbitration are two time-tested methods for dispute resolution . Each method has its own strengths and weaknesses . The main drawback of these methods is that , in spite of a solution being reached one side or the other is left dissatisfied . As a result , agreements are often not abided by . Eventually , the same problem that caused the dispute in the first place arises again . This can be a costly cycle in more ways than one . In addition to the economic cost , there is an even more

costly loss of trust between the two parties

In response to the weaknesses of mediation and arbitration , a trend toward hybrid methods of resolution has emerged . The hope is to create a synergy a combined result that is better than that of the individual parts . Research exists that a hybrid method can be effective . However there is no one-size-fits-all approach . Dispute resolution methods must be appropriate to the organization and its goals

Mediation and Arbitration : Their relative advantages

Mediation is an attempt to avoid binding third-party rulings by reaching a negotiated agreement . A third entity is present to facilitate negotiations , but not to rule on the issues . One of the strong points of mediation is that it results in more integrative agreements . The potential exists that this process could lead to a greater cooperation and trust between the two disputants . Another strong point is that the two sides remain largely in control of their own destiny . The uncertainty of having an outside entity determine the result is removed at this stage

Arbitration is a process most disputants seek to avoid , but it has strong points as well . In this method , the information for both sides is submitted to a neutral party . That party then renders a legally binding resolution to the two sides . Arbitration is an informative process for the two sides . Presumably , a fair decision is reached that does not favor either side unduly . Even more importantly , the loss of control that arbitration represents will force most disputants to the bargaining table . Ross and Conlon state the fact that most arbitrated cases reach a negotiated settlement before the arbitration is even complete (2000

The Hybrid Approach

What if the best aspects of mediation and arbitration could be combined into an

approach that better serves both sides ? For those attempting to remedy the drawbacks of

both methods it is the logical question to ask . Such a hybrid could take many forms . The

article by Ross and Conlon , Hybrid forms of third-party dispute resolution : Theoretical

implications of combining mediation and arbitration (2000 , evaluates two general

frameworks

Med .-arb (Mediation-Arbitration ) is a method that emphasizes negotiations between the parties under the threat of arbitration if no agreement is reached . Mediation alone can produce results , but the tendency of the two sides to engage in image control can dilute whatever agreement is eventually reached (2000 . In med .-arb , the two sides know that once the arbitration stage is reached all information must be put on the table . A non-partisan arbitrator then will decide the dispute

Arb .-med (Arbitration-Mediation ) is another hybrid method the authors considered . In this method , all information is presented up front to an arbitrator who makes a decision . The decision is then sealed while the parties attempt to reach a negotiated solution . If this cannot be done the decision is unsealed and becomes binding

The authors of the article note that control over the ultimate decision or lack of it , are the ultimate factor driving parties who enter a dispute resolution scenario (2000 . Mediation , by itself , grants the highest amount of control . However , negotiations can be long , costly and may not address the critical issues in a comprehensive way

Arbitration , on the other hand , grants little or no control to the parties involved . More often than not one or both parties are dissatisfied with the outcome . However , arbitration can be faster , less costly and more informative for the parties

Some organizations may be forced by legal restraints to adopt one method or the other . For those who are not hybrid approaches have shown promise . The med .-arb . approach gives control to the negotiating parties , but the threat of arbitration is always present . Even if arbitration is necessary , the dispute has been hashed out in a more comprehensive way during the mediation stage . This bodes well for future compliance with whatever remedy is imposed . According to the authors arb .-med . Lowers the outcome expectations of the parties and makes it more likely that they will have room to agree (2000

In arb .-med , the same threat is present from the beginning of the process . The two sides enter negotiations knowing more about each others positions than if they were engaging in mediation alone . More often than not , the sides do reach a negotiated agreement

The hybrid methods of dispute resolution produce a synergy that capitalizes on the typical preferences of negotiating parties . It is a carrot and stick ' approach that grants both sides elements of control over the process but also provides strong incentives to negotiate in good faith and reach an agreement

Conclusions

For dispute resolution to be successful , it must address the technical issues and the perceptions of the disputing parties . If one side or the other feels that the process is unfair , the long term success of a resolution is in doubt . Since both mediation and arbitration have their good aspects , a synergistic relationship is possible by blending the two methods in a form appropriate to the dispute and to the parties

Hybrid dispute resolutions have the potential to resolve the issues more quickly in a perceptibly fairer way . If the authors are correct in their proposition that control is the primary issue for disputants these methods can provide it . At the same time , the real threat of loss of control is clearly illustrated (particularly in arb .-med . The result is that parties are driven to negotiate agreements in good faith more often . These types of agreements stand the best chance for success

Source

Ross William H Conlon , Donald E (2000 . Hybrid forms of third-party dispute

resolution : Theoretical implications of combining mediation and arbitration

Academy of Management . The Academy of Management Review . Briarcliff

Manor Apr , Vol . 35 2 ,

. 416 , 12pp

Mediation and Arbitration PAGE 1 ...

Not the Essay You're looking for? Get a custom essay (only for $12.99)