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What are the differences between mediation and arbitration? 200 words, 5 marks
Difference between mediation and negotiation
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In the world of commerce, employment, and other social relations, businesses and individuals strive to choose either arbitration or mediation (conciliation). There are situations when parties submit their cases to arbitration bodies for mediation and, vice versa, when mediators are requested to resolve the dispute through the arbitration award. The arbitration and mediation traditions vary from jurisdiction to jurisdiction, but their general ideas still remain similar. However, while a mediator in a single process possesses no entitled authority to render an award, an arbitrator is vested with more procedural powers and can execute a mediator’s functions. Furthermore, despite the flexibility of arbitration and mediation procedures, as well …show more content…
Although functions of mediators and arbitrators have several characteristics in common, there are significant instrumental differences that make them distinct from one another. Firstly, whereas the arbitration process is similar to litigation in its adversarial nature, in which parties have the objective to win the dispute, the fundamental goal of mediation is to bring the disputants to settlement through compromise and cooperation without finding a guilty party. In arbitration, parties compete against each other in “win-lose” situation. During mediation, parties work on mutually acceptable conditions with the assistance of a facilitator. In this process, mediators do not have power to make decisions, they work to reconcile the competing needs and interests of involved parties. The mediator’s tasks are to assist disputants to identify, understand, and articulate their needs and interests to each other (Christopher W. Moore, …show more content…
Both forms of ADR have several common characteristics. However, one must consider that a neutral side in both procedures fulfils distinct from one another duties. Mediators do not have the objective to make decision, whereas arbitrators determine an outcome of the case. Upon the termination of the procedure, an arbiter renders a binding award that cannot be later avoided by disputants. During mediation, parties are not contingent upon the third side and enjoy freedom of actions needed for dispute resolution. In contrast, in case of failure to reach an agreement, parties are not legally bound for actions afterwards. By considering the true qualities of arbitration and mediation taken individually, legislation and scientists suggest that in single arbitration, arbitrators may use mediators’ functions to promote amicable settlement and functions of both arbitrators and mediators have incongruous
In psychological research it is important to understand the effects of moderators and mediators to the research being conducted. A moderator is a variable that exists prior to the experiment which affects the reaction of the independent variable on the dependent variable. A mediator is a variable that reduces the significance of the relationship of an independent variable on the dependent variable. A way to understand this concept is to explore specific examples.
Arbitration is an alternative to litigation between two parties in dispute. This method of dispute resolution is used by opposing parties outside a court of law. In Arbitration, both parties agree to a neutral panel, called an arbitration, who hears their dispute and decide the outcome. Arbitration uses an adversarial system much like litigation and offers a binding decision from the partly of their choice. Organizations in a Collective Agreement benefit by using arbitration instead of litigation because of the greater degree of control it give the parties, the ability for the parties appoint their own arbiter(s) and is generally a cost-effective approach compared to litigation.
contractual term that is included in a wide variety of agreements between two or more parties. This clause demands that any disputes that arise between these parties out of contracts or transactions be settled through an arbitration proceeding"(1) Arbitration is a form of ADR, Alternative Dispute Resolution, that is an alternaitve to a trial by jury. Instead of a judge deciding in favor of one of the parties during litigation, an arbitrator is able to make a legally binding decision. Arbitration was designed to be more beneficial to both parties over litigation as it's faster, cheaper, has
Ott, Marvin C. "Mediation as a Method of Conflict Resolution: Two Cases." International Organization 26.04 (1972): 595-618. JSTOR. Web. 3 Dec. 2013.
According to Britannica academic “arbitration is nonjudicial legal technique for resolving disputes by referring them to a neutral party for a binding decision, or “award” (Britannica Academic, 2017). Arbitration will reach a decision in which one of the parties “wins” so to say. Arbitration is more formal than mediation is and often involves more than one arbitrator. An arbitrator can enforce a solution in binding arbitration. Arbitrators are normally derived from the National Academy of Arbitrators in which these are based on experience and education (Fallon & McConnell,
As a whole, mediation within the workplace is very different from mediation within the framework of litigat...
Mediation is a suitable solution for competing rights disputes because both participants have a recognized Human Rights Code right that needs to be accommodated. Mediation should be used when the parties can not reach an agreement through negotiation because mediation is effective for resolving complex human rights disputes. Mediation encourages parties to participate in creative and cooperative efforts to reach a beneficial solution. Litigation is less likely then mediation to result in harmonious solutions. Additionally, mediation repairs relationships and aims to make both parties understand each other’s perspectives through open discussion. Furthermore, mediation is effective in competing rights scenarios because settlements are legally enforced. Legal enforcement creates empowerment and trust because both parties are required to comply with the settlement
Conflict always rises from differences because it is a disagreement of people and their values, motivations, perceptions, ideas and desires. Not necessarily these differences seem unimportant however a conflict causes strong feelings, a relational need of core problem, feelings of respect and value and closeness and intimacy. Conflict can be resolved through mediation, negotiation and arbitration process however mediation is the best means to resolve conflict in every sector. Different figures have different definition about mediation but there is still no universally agreed definition of general theory of mediation however Moore’s (2003) mediation definition is appeared more scientific and universal. According to Moore (2003), mediation is
Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail some parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to obtain larger control over the selection of the individual or individuals who will decide their dispute.
An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy. Bibliography Byars, L. L. (1997). The.
India is recognized as a country having a long history of mediation due to the existence and development of different forms of mediation to resolve business dispute since the pre-British India . In 1947, the concept of mediation/conciliation received legislative recognition in India for the first time in the Industrial Disputes Act which imposed the duty of conciliator to mediate and promote the settlement of industrial dispute. In 1996, an independent law regulating international commercial mediation, namely Arbitration and Conciliation Act, was adopted by Indian Parliament. It is also the first independent rule on international commercial mediation in Asia. In addition, Section 89 of the Code of Civil Procedure 1908 amended in 1999 provided for reference of cases pending in Courts to ADR which included mediation. Likely, due to the implementation of various mediation systems to resolve land, commercial or labor disputes since 1922, a special act regulating the court-based mediation proceedings was promulgated in Japan, namely Civil Conciliation Act (Minji Chotei Ho, Act No.222). Moreover, to encourage to development of private mediation proceedings, on 1 December 2004, the Act on promotion of use of Alternative Dispute Resolution was issued, which was followed by an Ordinance of the Ministry of Justice on 28 April 2006 and an Order of the cabinet. This
Mediation is usually done when both parties have exhausted all options for a negotiation to occur due to lack of trust, power dynamics, interests and values, emotions and poor communication. Mediation is a non-aggressive process used by many parties in conflict resolution, it is usually a conflict-defining phase. The neutral third party in the mediation process is called a mediator. According to Picard, “mediation is a form of assisted mediation where an impartial individual facilitates the negotiation process while the parties determine the outcome”(Bishop et al. 2002, p. 21). Consequently, Kruk defines mediation as “a collaborative conflict resolution process whereby parties in a dispute are assisted in their negotiations by a neutral and impartial third party and empowered to voluntarily reach their own mutually acceptable settlement” (Picard, 2002, p. 22).
Relative value of distributive agreement is determined based on the competitiveness of the market which negotiation is conducted about. For instance, in a market under perfect competition, where there are many buyers and sellers, prices mainly reflect supply and demand, and the parties are simply price takers, the value of distributive approach to negotiation will be trivial since any potential agreement will be at a pre-determined “market price”. Slight variance to that value will trigger failure in the negotiation. On the other hand, under conditions of monopolistic competition where number of producers or provides is very limited and uniqueness of the product or service is extremely high,
1) The difference between distributive and integrative bargaining Negotiation approaches are generally described as either distributive or integrative. At the heart of each strategy is a measurement of conflict between each party’s desired outcomes. Consider the following situation. Chris, an entrepreneur, is starting a new business that will occupy most of his free time for the near future.
In the text of The Contemporary Conflict Resolution Reader, mediators are described as having the skills to efficiently “exercise considerable ability in managing the face to face discussions, which can often call for subtle skill in influencing the way in which discussions are directed paced and timed” (Mitchell 80). This can be helpful when dealing with two individuals that are going through a highly emotional situation like a divorce. Spouses meet with mediators not so they can “make decisions for [them], but serves as a facilitator to help [them] figure out what's best” (Doskow). Mediation can be used in place of the judicial system when going through divorce proceedings.