Mediation Essay ⋆ Business Essay Examples ⋆ EssayEmpire

Mediation is a form of dispute resolution where a third party—an impartial mediator—assists two or more persons in finding a viable solution to problems. There are distinct differences between mediation and litigation. An obvious distinction is that the mediator, unlike a judge, has no say in the outcome of the case. Litigation is a process in where courts impose binding decisions in a determinative process. Now, more than ever, mediation has found widespread use in the realm of business, especially in the field of international law.

Generally, one can define mediation as a simple, informal approach to resolving disputes. Litigation, by contrast, entails a more complex proceeding. No formal rules of evidence or procedure control mediation: the parties agree to the terms. Although these two processes—litigation and mediation—sound very different, both are used to resolve disputes. Mediation often aims at resolving problems associated with litigation: high costs, excess duration, and the complexity of the judicial process. Still, mediation does not result in binding agreements, unless the parties agree to it.

Arbitration is not uncommon when engaging in mediation. Mediation has proven to be effective when paired with arbitration or even binding arbitration. In these cases, the mediator becomes an arbitrator, converting mediation into arbitration after the parties have been unable to come to an agreement through mediation. As a result, the arbitrator seeks additional evidence from witnesses, unlike a mediation proceeding, where witnesses are not called upon by a mediator. Sometimes the purpose of mediation is to improve relationships among parties who will have to deal with each other again. Other times mediation is for the sole purpose of helping the parties learn how best to handle conflicts in the future.

Voluntary agreements by the parties are central to the mediation process. Consequently, a mediator should conduct the process to maximize its voluntariness. Parties to mediation can decide whether to submit their dispute to mediation prior to arbitration. Conversely, parties may also decide to forego mediation and immediately delve into arbitration. For instance, the parties may decide that if the dispute cannot be settled through negotiation, they will first try to settle the dispute by mediation in good faith. Additionally, the parties may agree that the proceeding be administered by the American Arbitration Association under its Commercial Mediation Procedures. But if the parties immediately want to adopt mediation as a part of their contractual dispute settlement procedure, they can insert a mediation clause into their contract in conjunction with a standard arbitration provision.

The mediator plays an integral role; yet, his or her role is attenuated. This, of course, varies from case to case. A mediator works to help the parties fashion an agreement. But he or she does not have the authority to make a binding decision or award—that is, a mediator has no power to impose a solution. The mediator, therefore, serves as a catalyst between opposing interests, attempting to define issues and eliminate obstacles to communication. On the one hand, it can be said that the stronger the parties’ need for settlement, the more leverage the mediator has. On the other hand, the weaker the parties’ need for settlement, the more the mediator must work to create the perception of greater need; moreover, the mediator must create external leverage by way of incentives. Finally, the mediator helps the parties draft an agreement. If signed, a legally binding contract is formed.

Mediation is used in the United States and other countries for handling divorce and child custody cases. Additionally, it is used for interpersonal disputes—between employees, family members, and even friends—and has gained popularity with environmental and international disputes. As mediation continues developing, an increasing trend in the public and judicial spheres toward using mediated negotiation as an alternative to more traditional means of dispute resolution will become even more prevalent. Accordingly, mediation will continue gaining widespread use and may eventually replace many of the formal judicial processes used in many countries today.

Bibliography:

Nadja Alexander, Global Trends in Mediation, 2nd (Kluwer Law International, 2006);
James J. Alfini, Sharon B. Press, Jean R. Sternlight, and Joseph B. Stulberg, Mediation Theory and Practice (Matthew Bender and Co., 2006);
Klaus Peter Berger, Private Dispute Resolution in International Businesss (Kluwer Law International, 2006);
Kenneth Cloke, Mediating Dangerously: The Frontiers of Conflict Resolution (Jossey-Bass, 2001);
Barry M. Goldman et al., “The Role of Ideology in Mediated Disputes at Work: A Justice Perspective,” International Journal of Conflict Management (v.19/3, 2008);
Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 2nd ed. (Jossey-Bass, 1996);
Alice F. Stuhlmacher and Melissa G. Morrissett, “Men and Women as Mediators: Disputant Perceptions,” International Journal of Conflict Management (v.19/3, 2008).

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