Throughout this course we have learned about alternate dispute resolutions and the methods used in this process. These can range from simple negotiations to complex arbitrations, which each having a specific purpose to settle the dispute (Frey, 2003). Along with that, each have positives and negatives associated with them. In this assignment, we will discuss the process of each, pros and cons of each, and decide which one is best for certain scenarios.
First method that will be discussed is that of negotiation. This is considered the cheapest and most informal of the alternate dispute resolution avenues (Negotiation, n.d.). When using this to solve a dispute, the conflicting parties agree to sit down and talk, while identifying the issues of conflict and try to come to an agreement to end the dispute. To be prepared for this, each party must recognize what the concerns are for themselves and the other party and come to an understanding that they may have to compromise a bit for this dispute to be resolved. The biggest and most important elements of this process is that it is completely voluntary and non-binding, which means that if one of the parties does not want to participate, they did not have to and that no agreements made are enforceable by the court of law.
The next avenue we will explore is that of mediation. This also acts like negotiation in regards that both parties agree to sit down and try to hash this out. But, unlike negotiation, this process includes a third party, better known as a mediator. The role of this individual is to ensure that all concerns are being addressed and to keep a calm temperament in the proceedings, rather than acting as a judge to the case. Preparing for this legal action includes several factors, such as, getting the other party to agree to come and finding a mediator. Similar to the before mentioned method, mediation is non-binding and voluntary. Comparing this process to the next one, arbitration, it is cheaper and more informal.
Another form alternate dispute resolution used is through the means of arbitration. Like mediation, there is a third party present as well, known as the arbitrator. In most cases, this individual is a current/former attorney or judge. Using those who have a background in law is important because the decision rendered after hearing the cases is usually binding, meaning that it is enforceable in the court of law. But depending on the type of arbitration, voluntary or compulsory, this decides if it is voluntary or not. Many instances of compulsory arbitration occur every day, from agreeing to terms and services of a cell phone app to employment contracts.
Pros and Cons
As mentioned before, each of these have positives and negatives associated with them. For example, the use of mediation has the pros of being cheap and informal, but the cons include that it is voluntary, and that no resolution is guaranteed (Pros and Cons of Mediation, n.d.). So, if one party does not show up or is unwilling to compromise, even though it is cheap, it is still a waste of money. Negotiation is very similar to this except that is much cheaper, as no third party must be hired. On the other hand, arbitration has different pros and cons, especially if it is involuntary. Pros of this include that the decision is made quicker than that of a traditional trial and it is guaranteed. But the negatives of this is that the judgement is unappealable and that it leaves no legal recourse (Arbitration Pros and Cons, n.d.). All of these can be viewed differently, just depending on the situation.
The Best One
After discussing all this information, the best avenue to be used under the umbrella of alternate dispute resolution is that of mediation. This is because the cost and the non-binding action of the agreement made. Some may same that arbitration would be the best because it is a binding agreement, but if the judgement is made against you and you believe that is incorrect, there is no recourse of action that can be taken. In mediation, if one does not like the way the dispute was resolved, they may proceed with further legal action. Also, if mediation cannot solve the issue, then arbitration maybe an option as well. A party involved in a dispute should always consider the mediation avenue the first step to be taken.
The first situation presented is that of an employee/employer dispute over discrimination. It does not state whether this is based on gender or race, but it does not matter because of the Civil Rights Act of 1964. In this act, it clearly states that no individual should be discriminated against as a potential employee or an active employee based on their race, gender, etc. For this situation, let us just say it is based on race. With this being the case, no methods of alternate dispute resolution are suggested, but instead, a suggestion that this case go to litigation. The main reasoning behind this thought is that as a minority, your chances of “winning” are already reduced, so the best bet would be to have a jury decide your case. At least, in the case of the jury, they tend to have a negative perspective about corporations in general.
Land in a Will
This situation is much different than the last one, because when it comes to family, emotions play a much bigger role. As for which way this should play out, I would suggest first a mediation and if that did not work, arbitration would be the next step. Many reasons lie behind my choice of mediation, including: everyone will feel like their issues have been heard, solid chance that a resolution will be found, and this would not impact the family’s relationships as hard as say litigation would. A major factor behind disputes occurring in the first place is that one party feels like they are not heard and listened to about the subject at hand. With mediation comes the opportunity for everyone to clear the air with each other, therefore making them feel like they have been heard. Once that has occurred, the chances of figuring out a solution are increased dramatically. Also, because there has been an agreement means that the relationships can begin to heal.
For anyone who has ever had neighbors, we all know the issues that can arise from this. From barking dogs to loud parties, it can be a mess sometimes. In this situation, my suggestion would be for the neighbors to first sit down and have a negotiation. If a resolution can be agreed upon, this would be the most desirable pathway. Because of the informality and cost of this avenue, it would allow the parties to work it out without having to spend very much. Also, with the fact that the parties must live next door to each other, a resolution in this stage would allow them to remain at least friendly with each other.
Corporate Contract Dispute
In this situation a corporation is having a contract dispute with their distributor. For any scenario involving two corporations, my suggestion would be to use arbitration. This is because the last thing any company wants to be losing money while battling a dispute. Usage of arbitration would limit the expenses incurred, while also providing a quick and legally binding decision. Also, with this medium, unlike litigation, everything involved is kept confidential. The last thing any big corporation wants is the companies name associated with anything negative. With having a legally binding decision, it also prevents any kind of appeals, therefore limiting expenses and time.
Arbitration Pros and Cons, (n.d.) Retrieved from https://adr.findlaw.com/arbitration/arbitration-pros-and-cons.html
Frey, A. M. (2003) Alternate Methods of Dispute Resolutions. Retrieved from https://purdueuniversityglobal.vitalsource.com/#/books/1111505209/cfi/6/2!/4/2@0:0.131
Negotiation, (n.d.) Retrieved from https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/negotiation/
Pros and Cons of Mediation, (n.d.) Retrieved from https://www.allbusiness.com/pros-and-cons-of-mediation-4129-1.html