Mediation and arbitration are tools
available to those wishing to resolve their conflicts outside of taking legal
action. Mediation is when a neutral third party is brought in to “[facilitate]
communication between the conflicting parties so that they may work out their
own mutually acceptable agreement,” (Cahn, 2007, p. 195) while arbitration is
when “a neutral third party considers both sides of a dispute and makes a
decision, which is more binding than that of a judge in the legal system if
both parties have agreed in advance to abide by the decision (no appeal)” (p.
195). Agreeing to abide by an arbitration decision or coming up with an
agreeable resolution through mediation can not only be beneficial, but is often
much less expensive than taking things to court.
One
example of a situation where people might want to avoid court is in a divorce
proceeding. Emotions run high, assets are involved, and often arguments about
child custody frustrate the separation process. Divorce lawyers are quite
expensive and can leave the couple financially devastated. Although mediation
is not the right alternative in every divorce, it can be mutually beneficial in
some instances for this reason;
[T]he typical family mediation paradigm shifts the focus from rights-based litigation, deemed so harmful to participants in divorce proceedings, to an interest-based analysis of "win-win" alternatives likely to meet each party's and the children's individual and collective needs post-divorce. (Langan, 2011)
Divorce through mediation can ameliorate some
of the psychologically devastating effects of the typical courtroom battle
Another example of effective mediation is in neighborhood
disputes. Issues like a tree on one person’s property overhanging and creating
problems on a neighbor’s property can be resolved through mediation. According
to Lea (2012), “Situations where noise from a nearby bar is disturbing
residents or a resident's band is upsetting his neighbours [sic] are other
examples of disputes that can be settled with the help of [mediation].”
Arbitration differs from mediation in
that the arbitrator’s decision is legally binding, as if the parties involved
had gone to court. This is both a benefit and a drawback to the arbitration
process. Cahn (2007, p. 195) observed that prisons house many people who
decided to take justice into their own hands using violence against those who
were perceived cross them. For individuals wanting to pursue a more civilized
route, arbitration can resolve simple, as well as complex disputes.
Arbitration can benefit employees in
disciplinary disputes between them and management. Students may need
arbitration to settle a dispute at their college or university. Arbitration is
generally informal, non-public, and provides a way for all parties involved to
achieve resolution in such a way as to resume a working relationship. Depending
on the situation, arbitration usually results in both parties being satisfied.
As
valuable as mediation and arbitration are, there are their drawbacks. For
instance, “Since these alternative procedures are not bound to follow legal
precedent in coming to a decision, parties cannot count on legal precedent to
be determinative of the result” (Taylor, 2012). Sometimes finding a mediator or
arbitrator who all parties trust to be unbiased can be a challenge. Mediation
alone, especially in a divorce, is that it is done with legal representation,
which can result in a settlement that is imbalanced, unfair to, or not clearly
understood by one of the parties (Langan, 2011). Additionally, not all
mediators have been properly trained and certified.
One of many organizations that offer
mediation and arbitration services is the American Arbitration Association. Their
mediators and arbitrators are certified and trained in multiple areas of
expertise, including; accounting, communications, healthcare, entertainment and
sports, insurance, intellectual property, among others, in commercial,
consumer, government, and international arenas (AAA, 2011). This organization
provides guides, forms, and educational resources for those seeking
alternatives to dispute resolutions (ADRs).
An organization such as AAA can be very
valuable in the field of interpersonal communications. Many satisfying career opportunities
exist in corporate and business communications, especially in human resources,
which often people with communication skills to resolve disputes between
employees or between employees and management. Social service jobs also require
trained personnel who have interpersonal relationship skills and can resolve
conflicts with clients. AAA offers the tools and services for someone
interested in the mediation process. For me, personally, I can see how an
arbitration organization such as this can provide me with the means to make a
difference and effect change in the workplace as I pursue a career that
involves inter and intrapersonal skills.
The
function and role of mediation and arbitration are crucial in any type of
dispute ranging from personal and community relationships to work or school
related relationships. The effectiveness of mediating between disturbed parties
is only as good as the professional mediator. Having the ability to bring
resolution to conflicts is both a challenge and a rewarding endeavor. The
American Arbitration Association is an organization that can offer the
training, certification, and resources to become a successful and dynamic force
in helping people find resolution to their conflicts.
References
American
Arbitrator Association. (2011). Dispute
Resolution Services Worldwide. Retrieved July 2, 2012, from http://www.adr.org/aaa/faces/home?_afrLoop=49693280234785&_afrWindowMode=0&_afrWindowId=_new#%40%3F_afrWindowId%3D_new%26_afrLoop%3D4969328023 4785%26_afrWindowMode%3D0%26_adf.ctrl-state%3Dwe420k2kj_95
Cahn, D.D.,
& Abigail, R.A. (2007). Managing conflict through communication (4th ed.). Boston,
MA: Pearson Education, Inc.
Langan, E.
(2011). We Can Work It Out 1: Using
Cooperative Mediation - a Blend of Collaborative Law and Traditional Mediation
- to Resolve Divorce Disputes. The Review of Litigation, 30(2),
245-318. Retrieved July 2, 2012, from
ABI/INFORM Global. (Document ID: 2336190021).
Lea, D.. (2012, June 20). Community Conflict Resolution Services helps neighbours resolve conflicts.
Oakville Beaver,1. Retrieved July 2,
2012, from Canadian Newsstand Complete.
(Document ID: 2692872461).
Taylor, S.
(2012). What Are Mediation and
Arbitration. AllLaw.com. Retrieved July 2, 2012, from http://www.alllaw.com/articles/legal/article9.asp.


