Friday, April 22, 2016

Mediation and Arbitration

       
             In today’s world of disagreements and conflicts, often time we need additional help to assist us in resolving these conflicting issues.  We need an unbiased, impartial, and objective view to oversee, and at times interject a voice of reason to help keep the goal (resolution) in focus.  Having this sort of assistance will help our conflicts transition through the delicate steps of resolution in a matter that is constructive and productive to meet agreeable decisions.  This help is presented to us today in the form of meditation and arbitration. Mediation is the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result.
 Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge but in an out-of-court less formal setting but does not actively participate in the discussion (The People's Law Dictionary, 2005).  Arbitration is like a mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges (The People's Law Dictionary, 2005).
            As stated above, mediation and arbitration hearings are avenues which conflicting parties can venture to seek assistance in resolving their conflicts.  Both vehicles utilize individuals to guide the conflict to an agreeable resolution.  In mediations you have the mediator.  This individual is neutral and unbiased, [has] no decision-making power with respect to the outcome of the mediation, must maintain confidentiality, is an effective communicator, and encourages cooperation and discourages competition between parties (Abigail & Cahn, 2011, p. 201).  The mediator sets the atmosphere and/or tone of the gathering.  They are there to create a safe and productive setting to encourage teamwork amongst the conflicting parties to arrive at a win-win resolution.  They accomplish this with effective communication skills; choosing the appropriate words or phrases that encourage cooperation, teamwork, unity, and common interest.  They are to show no partiality towards one individual over the other; giving the same amount of attention to each individual.  Also, the mediator is to present him or herself as a professional with a standard of ethics and integrity.  All parties involve should feel confident or assured that the hearing will be held in utmost confidence: A mediator shall maintain confidentiality of all information obtained by the mediator in the mediation, unless otherwise agreed to by the parties or required by applicable law (Model Standards of Conflict For Mediators, 2005).
            According to the American Arbitration Association (AAA), a not-for-profit organization that is experienced in the field of alternative dispute resolution (ADR), “mediation is known to have the broadest application and the greatest potential for resolving disputes and reconciling conflictsThey handle disputes across a spectrum of territories like legal, commercial, institutional, governmental, workplace, community, and family matters (adr.admin, 2013).”  This can range from the loud neighbors next door, to arguments and disagreements amongst family members, conflicts on the job or in the community, writing bad checks, small real estate issues, rental disagreements, contract issues, and divorce.  People of all walks of life have found that mediation and arbitration processes are more affordable then your courtroom hearings.  Community and school mediations are free or offered on a sliding scale (2011, p. 196).  It is much easier and quicker to schedule a hearing; you are not faced with the overextended calendar schedule of the courts.  The first meeting between the mediator and the disputants is usually within a few days or weeks (2011, p. 196).  Others enjoy the less informal and mutual location for the sessions.  Also, it is estimated that 80% of mediation end with an acceptable agreement between parties (2011, p. 196).  Lastly, individuals find it appealing that they have more direct personal interaction and power over the outcome of the mediation then say if a judge was overseeing the event; their outcome is their final decision or agreement and no one else’s.  For these various reasons mentioned, we find that mediation and arbitration processes are favored to support conflicting parties. 
            The number one drawback to the arbitration proceedings is it is very hard to reverse or appeal the final agreement or decision.  Once all parties have agreed in advance to abide by the decision there is no appeal; they can be more binding than that of a judge in the legal system (2011, p. 195). 
            While reading about mediation in our text book and reviewing various documents on the AAA website about the role of a mediator, I thought of my days as a realtor.  The Model Standards of Conduct For Mediators (Model Standards of Conflict For Mediators, 2005) mirrors some of the same standards and conduct I had to hold to or abide by as a realtor.  I do not think I will return to the real estate profession, but the idea of code, ethics, honesty, and integrity has always been with and will never leave me.  When I was working in the computer networking field, my jobs consisted of security and integrity of computer data as well as the usage of the front and back end users of the system.  I had my producer license (insurance); more law and code of ethics.  As a realtor, we often liken ourselves as lawyers that “don’t get paid the big bucks.”  I have entertained the idea of going to Law School, but at other times, I have just considered pursuing an advocate position on a lesser scale than that of a lawyer.  Whatever the position, I do know that integrity, ethics, and standards will be a good chunk of my responsibility.  Helping people pursue their dreams and assisting them through the entanglements of life has always brought me joy and satisfaction.  Of course that means you will encounter conflict.  I have assisted many people through conflicts throughout my professional and personal life.  I have always known about mediation and arbitration but from afar.  Fortunately, I have never had to go through a process of that sort.  I (or with my manager) have always been able to resolve issues without any outside assistance of that magnitude; people have felt that they could rely on and put their trust in me.  Now that I have had the opportunity to read and study the subject matter closely, I see the mediator position as a great career choice after graduation.   Since I have in some shape, form, or fashion been a mediator throughout my life, I would have the opportunity to receive professional training coupled with my degree in Communications, to increase my effectiveness in assisting conflicting parties towards an agre (Solicitors, 2016)eable end.  The AAA provides ongoing training and development sessions through their university to assist mediators with effective mediation skills (for the new mediator), negotiation skills, how to control chaos in the mediation, ethical concerns, and so forth (American Arbitration Association, 2013).  They provide these courses in the classroom, in a webinar, online, or in a self-paced online study format.  This type of flexibility would increase my chances of requiring the education and skills I need on a continuous basis.  This looks like a promising career choice.
            As stated before, in today’s world of ups, downs and turnarounds, arguments and disagreements, when we are not able to resolve these conflicts amongst ourselves, mediation and arbitration is that additional assistance that can help guide and steer us to an agreeable resolution.  One can look to The American Arbitration Association as a place to reach out to for assistance.
           


References
Abigail, R. A., & Cahn, D. D. (2011). Managing conflict through communication. Boston: Pearson Education Inc.
adr.admin. (2013, August 1). Mediation Overview page. Retrieved from American Arbitration Association: https://community.adr.org/docs/DOC-1186
American Arbitration Association. (2013). Retrieved from American Arbitration Association: http://www.adr.org/aaa/faces/home?_afrLoop=652474224764668&_afrWindowMode=0&_afrWindowId=null#%40%3F_afrWindowId%3Dnull%26_afrLoop%3D652474224764668%26_afrWindowMode%3D0%26_adf.ctrl-state%3D1935bi3oqb_213
Model Standards of Conflict For Mediators. (2005, September 8). Retrieved from American Arbitration Association: http://www.adr.org/aaa/ShowProperty?nodeId=%2FUCM%2FADRSTG_010409&revision=latestreleased
Solicitors, T. R. (2016, January 14). Photo retrieved from The Law Society: http://www.lawsociety.org.uk/news/blog/mediation-why-arent-you-doing-it/
The People's Law Dictionary. (2005). arbitration. Retrieved from The Free Ditionary: http://legal-dictionary.thefreedictionary.com/arbitration
The People's Law Dictionary. (2005). mediation. Retrieved from The Free Dictionary.com: http://legal-dictionary.thefreedictionary.com/mediation

West's Encyclopedia of American Law. (2008). arbitration. Retrieved from The Free Dictionary.com: http://legal-dictionary.thefreedictiony.com/arbitration

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