PA 412 Unit 5 Assignment

PA 412

As the population of the United States has increased, so has the number of civil disputes. To combat this increase, the judicial system has implemented the usage of Alternative Dispute Resolutions. There are a few key reasons that these processes are used, including: the cost effectiveness, the time it takes to settle a dispute, and that it lessens the workload for the traditional courtroom. (Frey, 2003) As we dive into this assignment, the difference between traditional dispute trials and those that are settled in ADR will be discussed, along with the traits that a third party, such as a mediator, need to have to be successful in their jobs and whether or not these individuals should be required to obtain a license.

As expressed before, the benefits of using ADR are countless, especially when comparing this to the traditional courtroom trial. There are several key differences between avenues of ADR, such as mediation, to the traditional trial. The biggest of these is that most forms of ADR are voluntary and that they are not legally binding, specifically the medium of mediation. This is much different than a courtroom trial, as all parties must be present and often, they are represented by an attorney. Also, this avenue is much more formal and must adhere to procedural rules. While an attorney can be present during a mediation, their role is not the same as it would be in a traditional setting.

Mediation is the process of when the disputing parties hire a third party, mediator, to help settle their dispute without having to go to court. While the mediator does not determine the outcome, they play an important role, as they are there to keep the negotiations peaceful and fair. According to Imperati, (n.d.) there are several key traits that an individual practicing as a mediator must possess to be successful in their endeavors. These range from patience and tack to appearance and demeanor. While these traits play different roles, it is significant to be able to incorporate all of them because that would equate to a complete mediator.

Personally, I believe that the most important of these characteristics is the ability to maintain patience when dealing with people. If a mediator lacks in this area, they will find it difficult to listen to the issues at the heart of the dispute. Since, essentially, the main purpose of a mediator is to help settle these disputes, to lack patience would be counteractive to this process. But if a mediator does have patience and can listen to the parties to come up with a solution, then they have done their job.

Another trait I feel is important to possess as a mediator is intuition. To me, the definition of this term is the ability to see what is going to happen before it happens and be prepared for this situation to arise. According to Howden, (2015) “a good mediator will wade through legal positioning and focus on a party’s true interests.” To achieve the goal of settling the dispute, a mediator must use any tool that they can, even if this is achieved through unconventional techniques, like the one pointed out in this article. Sometimes the goal of the plaintiff party is based on monetary value, but sometimes it is just the fact that they want to be heard and for the other party to acknowledge them. If a mediator can identify the personal issues involved in the dispute, chances are that a solution that satisfies both parties will be reached.

A third trait that I would consider to be important for a mediator would be humbleness. (How to be a Good Mediator, 2019) This to me, is the ability to recognize that no matter what status you possess in society, you are a human and that we all make mistakes. Let us just say that one is a mediator and has been involved in numerous cases that include “celebrities.” This may lead to some developing a “big head,” therefore feeling like they above little things. When in reality, you are just as equal as the janitor who cleans your office. When applying this a mediation, a mediator must be open to other’s thoughts and views. If they are not open to this because they feel like they are superior and know everything, then it could lead to one or both parties not being satisfied with the mediation itself. With the key traits that make a successful mediator being discussed, the next item of importance is the education of these individuals.

From what we have learned so far this term, we have discovered that mediators do not have to be licensed or have a specific education in law to practice. This is much different than an attorney, as they require an education from a law school and a Juris Doctrine to order to practice law. The roles of these professions differ drastically, as one is hired to represent the client in legal matters and the other one is trained to settle disputes in more of intimate setting. Also, how law applies to their respective profession is quite different. With these key differences, I do not believe that a mediator should be required to obtain a J.D., but I do believe that anybody whose job involves the law and dealing with clients, should be licensed in their jurisdiction.

There are a few reasons why I think this, with the main reason being that states should be able to regulate all professions involved with the law. Pretty much all the regular participants of a traditional courtroom have some form of specialized education, from the judge to the court reporter, along with certain licenses pertaining to their roles. To obtain a license in those states who require them, one must pass a certified exam in their respective fields. (Court Reporter: How Do I Become a Court Reporter, n.d.) With this being the case, the state can regulate these fields and require certain educational levels be met. In addition to this, regulation of this nature can enforce a higher quality standard for those who are mediators.

Another reason I think that mediators should be licensed is because of how individuals perceive those in the legal industry. By not requiring a specialized license, it could portray that mediation does not revolve around law and therefore anybody can act as a mediator. With this being the perception, individuals who are trying to resolve an issue, could possibly skip the mediation process because they feel that it would lead to a dead end. And this would equate to them ending up in the courtroom, which is the total opposite goal of ADR. But if the state does require license, it helps reinforce the idea that law is there to be used for good instead of bad.

As any good debater would recognize, there will always be valid points against the way that they think. In this situation, one may argue against the licensing of mediators based on several reasons, including: that it limits innovation, it would limit the options parties have when hiring a mediator, and that it would create an obligation for mediators to do pro-bono work. (Levin, 2009) Personally, I can see why some of these arguments would be made and I agree with the first one. By creating a uniform standard, it can limit thoughts and techniques used by a mediator. But to the other two arguments, I would have a rebuttal. On the thought that it would limit options for consumers, I would say that yes it would but by doing so it would highlight those who have specialized education in the field. I know if it was myself involved in a mediation, I would most certainly choose a mediator with a license as opposed to those without it. This would guarantee that the individual acting as mediator is well versed and up to date in the area of mediation. As for the final argument, I would think that as mediator you would want to do a few of these a year. Not only is this a way to gain more education through experience, it is also a great way to show that you care about the community in which you work or even live. Also, it would create publicity, and there is no such thing as bad publicity, especially in this time and age.

References

Frey, 2003

Imperati, n.d. https://www.mediate.com/articles/imperati1.cfm

Howden, 2015 https://www.shibleyrighton.com/TLW_Feb13_pg12.pdf

Good mediator 2019 https://www.universalclass.com/articles/business/how-to-be-a-good-mediator.htm

Court reporter n.d. https://study.com/articles/Court_Reporter_How_Do_I_Become_a_Court_Reporter.html

Levin 2009 https://mediationchannel.com/2009/10/18/public-licensing-and-regulation-of-mediators-the-arguments-for-and-against/