Mediation &
Arbitration
Since the most commonly thought of idea of
mediation and arbitration is divorce I will use that as we compare the
function, role, and effectiveness of each style of conflict resolution. Both
mediation and arbitration have the same intent on reaching a mutual agreement
that both parties are accepting of. Mediation would be used by a couple who
have no children and are having a hard time dividing up martial assets such as
the house, cars, and money. Arbitration would be used if that same married
couple had children and wanted a legal binding document that outlined the
rights that the parents have with the kids. If the parents are capable of
working together then arbitration would be better suited than court for child
custody and child support agreements because both parents could include what
was best for them as well as the kids.
If those same parents were unable to reach a
decision then it would be taken before a formal court where the judge would
determine what was best for the children regardless of how it affected the
parents. It is best for all parties involved if they utilize a mediator or
arbitration to reach a desired goal. However, somethings that require
historical and legal arrangements require arbitration. One difference in the
mediation and arbitration that can also be taken into consideration when
determining which to use is cost. (Bennett, 2014) Mediation is cheaper than
arbitration, yet arbitration is cheaper than paying lawyer fees and court cost.
In order to bust the myth of mediation and
arbitration I look to the example used in our text. A father sets his son and
his sons friends down at the table to settle an argument. (Cahn & Abigail,
2014) How many times as parents have you had to do this? Thinking back, you
have mediated more than what you imagined. Daily with four children at home
mediation always takes place. I like to think of myself as the mediator and my
wife as the arbitrator. The kids are home all day with her so once momma lays
down the decision things are a little more final than if I step in and try to
settle a sibling dispute. Although that
is a very simplistic way to view it, it holds true.
The same can be said at the work place. Many
companies have conflict resolution sessions that involve a mediator or
arbitrator. One company that specializes in this is the American Arbitration
Association.
“The American Arbitration Association (AAA), is
a not-for-profit organization with offices throughout the U.S. AAA has a long
history and experience in the field of alternative dispute resolution,
providing services to individuals and organizations who wish to resolve
conflicts out of court. The Association also provides elections services as
well as education, training, and publications for those seeking a broader or
deeper understanding of alternative dispute resolution.”(AAA, 2016)
Basically this association can help in finding
an arbitrator or mediator for your specific matter and ensure not only is your
conflict resolved but file all legal documents if the arbitration method is
used. This is will be a very beneficial website and organization for me in the
future. Since I plan to start my own real estate investment business there will
be times where mediation just won’t cut it. Some instances will require
arbitration because of legal documentation. This association will be able to
assist be certified individuals who can navigate through the court systems and
legal documents to help resolve a conflict if one arises.
The question arises, why would I need an
arbitrator for a real estate investment business? In the event that I have a
tenant in one of rental properties who gets hurt and decides to sue me I can
call upon the AAA for assistance. This would not only save my tenant money but
keep things less formal while we work through the dispute. Another overall
accomplishment of the AAA is that they can decrease the amount of people suing
one another. Often, civil court gets back up but if people were to use
arbitration the conflict would be settled faster and cheaper.
The drawback in using mediation is that
although a goal may be achieved there is no legal binding documentation.
Therefore, the conflict could arise again and be drug out until it either gets
resolved again moves to the next level. If moved to the next level arbitration
begins. Although a useful tool in conflict resolution it does have a major
downfall. If arbitration is used “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.(Cahn & Abigail, 2014)” This mean that no appeal is possible. Now
a legal document has been filed and the decision cannot be altered.
These two conflict resolution methods are very
beneficial if used properly. As parents we mediate all the time. Teachers,
bosses, and referees mediate as well. We just fail to truly look as mediation
for what it is. An impartial third party involved in a decision making process.
Arbitration is less commonly used but it is important to understand it fully
before using. Although a very use tool it does have a major drawback. In the
end, to resolve a conflict you must first understand the principle in which the
conflict was founded; and then have the knowledge of which method to use to
achieve the desired goal.
References
American Arbitration Association(AAA).(2016)
Retrieved from https://www.adr.org/aaa /faces/s/ about?_
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Bennett, S. C. (2014). MODELS FOR USE OF
MEDIATION IN E-DISCOVERY. Tennessee Journal of Law & Policy, 9(3), 336-356.
Cahn, D. D., & Abigail, R. A. (2014). Managing
conflict through communication (5th ed.). Boston, MA: Pearson Education,
Inc.
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