Mediation is the process whereby a third party helps the parties involved to come up with a solution of their own. In this regard, mediators gather the disputing parties together and assist them to define the challenge in terms of debatable interests and needs (Conflict Research Consortium, 1998). Then, the mediators assist the parties to develop several ideas to meet the interests of the parties involved at the same time.
Subsequent to this, the mediator assists the parties to gauge the relative benefits accruing from various options and come up with a pact that works for the parties involved. The parties are left to either accept or reject the final agreement (Conflict Research Consortium, 1998).
Unlike mediation, arbitration is the process where a third party makes legally binding decisions after going through all the evidence adduced by two or more warring parties (Conflict Research Consortium, 1998). Arbitration is adversarial.
Mediation has failed in international conflicts. For instance, out of 78 international conflicts happening between 1945 and 1986, mediation was used in 56 but most of the mediations were unsuccessful(Conflict Research Consortium, 1998). However, mediation is quite effective on issues like divorce, interpersonal conflicts, cases involving custody issues, and environmental disputes (Conflict Research Consortium, 1998).
Arbitration is quite effective in labor-management, business, and consumer conflicts. For instance, in 1985, 95 percent of every collective bargaining agreement needed that arbitration is used to solve conflicts (Conflict Research Consortium, 1998).
Mediation and arbitration can be utilized in all types of disputes. The methods have been used with marked success in torts, business disputes, building and construction issues, labor disputes, environmental disputes, professional disputes, maritime issues, insurance coverage disputes, dissolution of partnerships as well as domestic issues.
The American Arbitration Association
The American Arbitration Association (AAA) is a non-profit making organization found and based in the United States of America. AAA is quite experienced in the Alternative Dispute Resolution (ADR) field and provides services to both individuals and organizations (American Arbitration Association, 2013).
The role of AAA concerning dispute resolution process is to manage cases from the beginning to the end (American Arbitration Association, 2013). They provide the services both in the US and abroad by selecting of mediators and arbitrators, fixing hearings and providing clients with information concerning dispute resolutions, which include solving through mediation (American Arbitration Association, 2013).
They also offer services like the design and progression of ADR systems for firms, unions, state authorities, law firms, and the courts (American Arbitration Association, 2013). In the future, I intend to venture into the real estate business. This is a field with potential disputes involving tenants, agents, and the state authorities. AAA will be useful in solving such disputes.
Drawbacks of Mediation and Arbitration
Mediation and arbitration have their drawbacks as well. Arbitration lacks an established evidence process. As such, it is hard to rely on the arbitrator to sort out the given evidence, as he might not be qualified in such a process (Murrey, 2013).
There is no cross-examination neither can the arbitrator be removed until the process is over (Murrey, 2013). Secondly, the decision of the arbitrator is final in binding arbitration as securing an appeal is so lengthy since prejudice has to be proved that it existed (Murrey, 2013).
In addition, in arbitration, the success or failure of the process relies heavily on the arbitrator (Murrey, 2013). The evidence adduced does not matter as such. The process, therefore, is tied to the ability of the arbitrator (Murrey, 2013).
The confidentiality dictated by arbitration is not appropriate for some disputes and especially where the public interest is involved. Since the process depends on the arbitrator, the expected outcome is usually very uncertain and this may cause unnecessary tension between the parties (Murrey, 2013). Unlike meditation, arbitration does not endeavor to reconcile the disputants, as it is adversarial by nature (Murrey, 2013).
After the mediator brings the warring parties to the negotiating table, there is no guarantee that the parties will go on with the talks. Unfortunately, there is nothing to compel the parties to continue the mediation (Murrey, 2013).
In this regard, therefore, mediation becomes a tactic to stall the whole process of solving the disputes. Since the parties design and draft the agreement, some parties may be excluded from being weak yet quite important to the dispute (Conflict Research Consortium, 1998).
Mediation usually ends in the courts and thus fails to make sense of the process in the first place (Murrey, 2013). Since the mediator is passive, there lacks a neutral party and lack of such a party greatly lowers the chances of reaching an agreement as happens in the arbitration process (Murrey, 2013).
Mediations do not create judicial precedents and as such, they do not add a lot of value to the judicial process since the outcomes cannot be used to determine similar cases (Murrey, 2013). There also exists a high probability of one party being stronger than the other since there are no mechanisms to check this (Murrey, 2013).
References
American Arbitration Association. (2013). About American Arbitration Association. Web.
Conflict Research Consortium. (1998). Mediation. Web.
Murrey, J. (2013). What are the Benefits and Drawbacks of Arbitration?. Web.