Negotiations and Alternate Dispute Mechanism

Alternative Dispute resolution encompasses distinct forms of dispute resolution through arbitration and mediation. Arbitration is a method of dispute resolution involving one or more neutral third parties who are usually agreed to by disputing parties and whose decision is binding.[1] Arbitration generally proceeds in a similar fashion to that of the court with opening statements, the presentation of witnesses and evidence, cross-examination, and closing arguments. Arbitrators then decide cases based on the evidence, and their decision is final binding on the parties. Mediation on the other hand is an informal dispute process in which the third party – the mediator helps disputing parties to reach an agreement. A mediator, unlike the arbitrator, has no power to impose his decisions on the parties. Therefore, the mediator’s role is to bring the parties closer together through discussions of weaknesses in the case for both sides, in an effort to convince each to settle the dispute. Arbitration and mediation are voluntary mechanisms- that is the parties are only required to mediate or arbitrate if they agree to do so. The absence of such an agreement will see the parties go to the court of law; therefore the parties in contention cannot be hauled into private mediation and arbitration against their will. It is at the disposal of the parties to decide how they will go about to do it. Alternative Dispute Resolution mechanisms have advantageous such that they are cheaper and quicker than court proceeding and permit parties to resolve their differences more efficiently. Studies have shown that arbitration proceedings in the employment discrimination area to take an average of 8.6 months to be resolved, whereas the average court cases involving alleged employment discrimination takes almost two years.[2] This has seen businesses and employees placing mediation and arbitration in the employment contracts or agreements thus discrimination conflicts can be solved amicably without going to the court of law. Arbitration Arbitration proceedings are like informal court proceedings. They take place in conference room and not in the courtrooms at date scheduled by the parties. In African traditional setting arbitration proceedings take place under a tree called a baraza[3]. Generally during the proceedings of the arbitration the parties select a particular rule to apply to the arbitration and are free to modify such rules by agreement. The reason parties prefer arbitrations to court is because they are more streamlined and friendly. Discoveries in arbitrations tend to be less comprehensive and persistent, with arbitrators frequently imposing limits on the number of depositions each party can take. The arbitrators equally understand that the parties select arbitration in part to avoid the cost of court proceeding and issue rulings considering these goals. While arbitrators make evidentiary rulings and can bar evidence and testimony they deem improper, arbitration rules generally shun strict compliance with rules of evidence.[4]   In conforming to the informal nature of the Alternative Dispute Resolution mechanisms, the arbitrators generally make mistake on the side of admitting all the evidence and when they are weight to particular testimony and exhibits. Therefore due to the informal nature the arbitration process give a loophole for some biasness in the process of making decision among the arbitrators. Unless parties’ arbitration provides otherwise, arbitrators generally are chosen with the help of designated arbitration organization. The process entails the organization submitting names of the arbitrators to the parties then the parties will strike the names they consider lowly ranked. The highly ranked names by the parties will be then asked to arbitrate the dispute. Various formats of arbitration can be highlighted in this sense. Most traditional is for a single arbitrator to act as the judge of the case, that is, to preside over trial and then issue a ruling based on the evidence. This varies slightly from the use of panel of arbitrators –rather than a single arbitrator- to hear a dispute. A single arbitrator handles small to medium-sized disputes, with a panel of arbitrators used to solve more complicated disagreements. Sometimes parties can decide the number of arbitrators they want in resolving their dispute. Parties can also select other forms for arbitrating dispute. For instance, parties can use â€Å"baseball-style† of arbitration where the one party, which table its proposal for example of a salary to a panel of arbitrators and the employer for example, tables his/ her proposal too.[5] Then the arbitrators go through each party’s proposal and come up with an amicable figure or solution to the dispute. This is a case where the winner takes it all since the arbitrators do not have the ability to split their decision but to choose one side’s proposal. This kind of scenario is equally done in business settings where each party endeavors to offer the best possible offer, as the more aggressive a party’s submission, the less likely it is to be chosen by the arbitrator. Another variation from traditional arbitration is the so-called â€Å"Party arbitrators†. This is contrary to the traditional arbitrators who are unbiased and must be free of conflict of interest. Parties’ arbitrators are not neutral and instead are appointed by one of the parties. In this case each party appoints its arbitrator to join a third neutral arbitrator who serves as the chairperson of the panel. This can be depicted in sport disputes, which handle players’ grievances, for example. This form of arbitration is also common in boarder labor environment, with a union and management each appointing its own chosen representative to join a neutral chairperson. Party arbitrators complicate the process of reaching an amicable solution to a problem because the representatives of the parties of course support the position of the parties that appointed them. Some even go ahead and act  Ã‚   as advocates by questioning witnesses. In this effect, arbitrations involving party arbitrators tend to hinge on the vote of the lone neutral arbitrator, with the two party arbitrators generally ruling in favor of the party that appointed them. Mediation Mediation, on the other hand, entails the effort of a single and neutral party- the mediator- to act as an intermediary between parties to help them resolve disputes. Most of the mediation proceedings are nonbonding with the mediator having no authority to compel the parties to reach a resolution. In this sense the mediator considers each parties point of view and their reasons in the light of settling the dispute. This therefore is a case where a skillful and a man of high integrity can act as a broker between the parties and help each party to see the case from a neutral perspective. The mediator can save the parties time and money by pushing them to accomplish their resolution in a day what would have taken weeks and months. Mediation comes in various facets. One form of mediation is the facilitative mediation. In this form the mediator uses the best efforts to convince each side the reasons to settle. The mediator does this by highlighting the weakness of its case, the strengths in its adversary’s case, the cost of litigation, the downside risk of not prevailing, and any other factors that the mediator believes the parties should focus on in properly assessing the case. A good mediator- by the fact that he/she is respected by both the parties- can be suited to soften each side’s position. He can ascertain the strongest and weakest points in each side’s case and may be able to advance each side’s position with the opposing party. Facilitative mediation sessions begin in a conference room where the mediator and the all parties are present. Each parties counsel is given an opportunity to make an opening statement in support of its case (the party’s case). After this opening statement, the parties break into different rooms, separately meeting with the mediator who shuttle back and forth to bring the parties closer. The mediator tries to convince the defendant when he is in the defendant’s room and give him the reasons for not pursing further the case. The mediator also brings out the expenses that the two parties will incur in the process of fighting in the case. He shows how difficult it would to prove her case. In facilitative mediation the mediator does not formally evaluate the case or promote any particular settlement. His goal is to find areas of potential compromise between the parties, and creatively search for a resolution acceptable to each party. On the other hand evaluative mediation, the mediator does not only facilitate the discussions between the parties but also evaluates the claims in the issue. The mediator in this examines the case, by looking at the pleadings and damages modes and arrives at specific recommended settlement- based on his assessment of the likely result of the prospective trial. Even if this does not lead to  Ã‚   an immediate settlement, it may focus on the parties on middle ground and form the starting point for negotiations in the ensuing days. As in the case of facilitative mediation the mediator ought to be a person of integrity in the society if not so no party will accept his judgment thus making the whole exercise to be in futility. There is also the kind of mediation referred to as binding mediation. This is where the mediator not only evaluates the parties but also ultimately imposes a settlement on the parties. This method is less prevalent since it the mediator takes the position similar to the judge at the law court. Parties prefer to discuss through their dispute but not to trust third parties. So instead of taking this form of mediation, parties just decide to go for full-blown trial. In preparation of mediation sessions, as an initial matter the selection of the mediator is very important. In most instances it is the parties that select the mediators. It is important to choose a mediator respected not only by one side but the two sides.   The goal of the of mediation is to use the mediator as an instrument to prod the other side to settle on favorable terms, and only a respected mediator   is likely to have that ability. In the preparation of mediation process the parties concerned have to prepare and submit confidential mediation statement in support of their position in the case. The statements are confidential and only accessible to the mediator and not to the other party. They are meant to orient the mediator in the case so that he can be a more effective intermediary.   The mediators’ objective is to reach settlement- and not to reach the result he believes is most equity- and he is mostly likely to succeed if he knows in advance what potholes to avoid. Negotiations In the endeavor to negotiate effectively, negotiators require a thorough knowledge of client’s case. They also have to know their clients priorities with the respect to the item in dispute. Negotiations require tact and skills, the understanding of the personalities and interests at play, and the trust and respect of the other side. The main mistake in negotiating is to be caught in a bluff, threatening to take certain action then not following through. Once this happens, it diminishes the opposing side’s trust in the counsel and makes favorable settlement far more difficult settlement far more difficult to achieve going forward. Negotiations sometimes can be long so synchronizing the negotiations is paramount for the success of the processes.[6] Generally, a claimant will make a demand before ever initiating alternative dispute response mechanism; it is the respondent’s rejection of this demand that leads to arbitration. Most arbitration organizations offer voluntary mediation to the parties and arbitrators. Thus effective counsel advocates never fully  Ã‚   give up on the possibility of settlement, even if a negotiation resolution does not seem realistic in the near term.   Effective negotiations require careful preparation by counsel. The main element of negotiations is to accurately express a client’s view of the case and properly set opposing counsel’s expectations. None of the mechanisms of resolving disputes –arbitration, mediation or private negotiation are exclusive and independent on their own. Therefore none can work without the backing of the other. If for instance a counsel is doing her job properly, she is not just focused on arbitrating or just on negotiating; rather, she is at all time considering the best and most efficient way to get her client form the point of dispute to a satisfactory resolution. If the counsel feels that there is another good mediator who will help to bridge the gap between the parties then she should steer the case toward mediation. Works Cited Lewis, Maltby. Private Justice: Employment Arbitration and Civil Rights, 30 COLUM.HUM.REV.29, 55 (1998) Wax, Robert. Staying Out of Court: Using Alternative Dispute Resolution Can Save Time and Money. Journal (2006) Whittlesey, Dave. Baseball-Style Arbitration: Don’t Strike Out, Broadcasting & Cable (Jan. 30, 2006). [1] See Black’s Law Dictionary [2] See Lewis L. Maltby, Private Justice: Employment Arbitration and Civil Rights, 30 COLUM.HUM.REV.29, 55 (1998) [3] Baraza- a meeting of elders aimed at arbitrating a conflict in East Africa. [4] The parties may offer such evidence as is relevant to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary. [5] See R. Rabin and D. Whittlesey, Baseball-Style Arbitration: Don’t Strike Out, Broadcasting & Cable (Jan. 30, 2006). [6] See Wax, Robert. staying Out of   Court: using Alternative Dispute Resolution can Save Time and Money (2006)