Alternative Dispute Resolution

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Alternative Dispute Resolution by Mind Map: Alternative Dispute Resolution

1. Mediation: conflict resolution method where two or more parties discuss methods of resolution with the help of an unaffiliated neutral party.

1.1. Advantages

1.1.1. 1. Freedom of choice – mediation allows the participants to be involved in the solution. With the help of the mediator, each party of the conflict gives input into the solution and then has the choice to accept or not accept any solution or part of a solution (Benton, 2015).

1.1.2. 2. Better post-conflict relationship – Most times, when someone files a lawsuit against another it puts the sued party on the defensive and generates hostility towards the suer. However, for those that are successful in resolving their dispute using mediation, the hostility generated by a lawsuit is not generated and, therefore, parties can maintain a civil relationship. This allows businesses that might have had a dispute continue to work together after resolution (Benton, 2015).

1.1.3. 3. Cost versus litigation – Many times, due to the informality of mediation and the mediators ability to help each party understand the point of view of the other party, conflicts are resolved much quicker than the court system. Mediated disputes can be resolved in a couple hours or sessions versus months or years awaiting resolution in the courts (Benton, 2015).

1.2. Disadvantages

1.2.1. 1. May prematurely show hand – When disputes are not resolved and continue onto the courts, each side may have intimate knowledge of the other side’s allegation and evidence. Both sides gain an advantage in building their case, which, can prolong litigation and subsequently time and cost (Benton, 2015).

1.2.2. 2. Disproportionate abilities – When one part has a disproportionately greater amount of sophistication, power, or resources to bring to the mediation, the informality of the process can give that part an advantage over the other (Benton, 2015).

1.2.3. 3. Disputed resolution – A separate conflict can sometimes arise when the resolution to the original dispute is called into question by one of the parties involved. When a mediated resolution is disputed it almost always ends up in the court system, wasting the time and money spent on mediation (Benton, 2015).

2. Arbitration – Alternative dispute resolution method where involved parties present their case to an arbitrator who hears all evidence then makes a legally binding decision.

2.1. Advantages

2.1.1. 1. Picked Arbitrator – An arbitrator may be selected by the parties involved. This allows the parties to choose an arbitrator based on qualifications of their choosing. It also allows the arbitrators with expertise in subject matter related to the dispute to be chosen. If the parties are unable to agree upon an arbitrator they can gain assistance from the court or arbitrations association (AllBusiness, 2017).

2.1.2. 2. Cost – Like mediation, because the process is less involved, somewhat less informal, quicker and more efficient cost of mediation is less than court mitigation. The fact that arbitration takes less time to complete than litigating in court will save involved parties on associated legal fees. Many organizations that provide arbitration services have their fees tied to the size of the claim involved (AllBusiness, 2017).

2.1.3. 3. Semi-Formal Proceedings –Arbitration is more formal than mediation but less so than court. This means parties don’t present their case in front of the arbitrator, but instead often sit around a table. This less formal requirement allows more relaxed rules of evidence; for example informal investigations are allowed. However, like a court room, the decision of the arbitrator is final (AllBusiness, 2017).

2.2. Disadvantages

2.2.1. 1. Antagonism – Unlike arbitration where the parties are involved with coming up with the solution, a mediator decides the outcome. Due to this lack of involvement, many times animosity remains after resolution of the dispute. Additionally, like court litigation, involved parties often feel like they won or loss. The ‘losing’ party will feel like they did not get resolution and will retain any hostility previously held. If the arbitrator splits the difference, then both parties may feel they lost and hostilities will remain (AllBusiness, 2017).

2.2.2. 2. No formal evidence process – Relaxed rules of evidence means there is no formal process. This lack of process means that it is up to the arbitrator to sort through the evidence to determine what is relevant and what is not. Additionally, there is no discovery process, so parties cannot prepare for what is presented to the arbitrator by the opposing party. Further hampering party’s defense against the opposition is the limited to no cross-examination of evidence (Murray, 2017).

2.2.3. 3. No formal appeal process – Arbitration is final without any way to appeal to a higher “court” or authority. Couple this with the fact that decisions of arbitration are legally binding and there is no redress for parties who do not feel that the resolution is fair or just. The only exception is if a party can show that the arbitrator acted against them with malice or was unfairly biased (Murray, 2017).

3. Arbitrator Qualifications

3.1. 1. Education – Each state sets the minimum requirements needed to become an arbitrator. Many states require a law degree and licensed with the State Bar. Additionally, it is preferential that the person has prior experience as an attorney or business professional. For states that do not require a law degree, a minimum of a bachelor’s degree is required; preferably in conflict resolution or alternative dispute resolution (Lindsey, n.d.).

3.2. 2. Licensing and Certification – There is no Federal licensing or certification for arbitrators. However, several states offer certifications and require members to be licensed in the state in which they practice. Other states only require certification from a recognized association. The National Academy of Arbitrators (NAA) is accepted by every state that does not have its own certification process. Requirements for membership include a minimum of 10 years of senior level business experience or legal practice, degree(s) and or license(s) in field of expertise, training or experience in arbitration, and letters of recommendation (Lindsey, n.d.).

3.3. 3. Internship – Most certification processes require supervised arbitration or prior experience arbitrating before becoming an arbitrator. The best way to gain this experience is through internships. Many state court systems offer internship programs that allow people interested in becoming an arbitrator gain knowledge and experience prior to investing resources towards the training. These internships also allow those in the process of gaining training to get experience (Lindsey, n.d.).

3.4. 4. Neutrality – Since unfair bias is one cause to have a mediated dispute overturned or brought to court, impartiality by the mediator is essential. All decisions made by a mediator are final and binding on the parties involved, as such, mediators must maintain their neutrality throughout the proceedings. This neutrality will allow them the ability to evaluate and apply fair judgement (American Arbitration Association, n.d.).

3.5. 5. Reputation – As mentioned in a previous qualification, arbitrators attempting to be certified with the NAA require letters of recommendation. These letters of recommendation must highlight the arbitrator’s qualifications and accomplishments. Included in the qualifications should be honors, awards, and citations showcasing the arbitrator’s leadership within his or her field. These letters of recommendation and honors build the arbitrators reputation for integrity, fairness, and good judgement. It is then up to the arbitrator to maintain this reputation among peers in their field and among association fellows (American Arbitration Association, n.d.).

4. Mediator Qualifications

4.1. 1. Education – Many states require a degree in a related field of study. This requirement helps to ensure that mediators have a basic knowledge of the area of law in which they are going to mediate over. The most ideal undergraduate degrees for a mediator are in law, conflict resolution management, psychology, or communication. However, a degree in any field of study is acceptable (Kelly, 2017). Additionally, many states and associations require a minimum number of hours of continuing education in mediation, conflict resolution, and related topics (Montana Mediation Association, 2014).

4.2. 2. Training – Every state requires a minimum amount of training on how to become a mediator. The lowest amount of time required by any state is 20 hours. In addition, there is training in numerous areas of mediation to include divorce, personal injury, and breach of contract. In order to be certified in a given area of mediation, the mediator must attend the training for that area (Kelly, 2017).

4.3. 3. Experience – Mediators must attain experience in observing and conducting mediations to become certified. One way to get the experience prior to being certified is to co-mediate with a certified mediator. Again, like training, each state has a different requirement for how many hours of experience are needed prior to certification (Kelly, 2017).

4.4. 4. Impartiality – This aspect is central to the tenant of mediation. Mediators must be impartial in any mediation proceedings they preside over in order to remain a neutral party. Any favoritism or bias that a mediator has can call their judgement into question.

4.5. 5. Communication Skills – Mediators must have well developed communications skills. These communication skills must be in oral and written communication. Examples of good oral communication skills include “active” listening, guiding conversations, accurately paraphrasing, using neutral language, and appropriately questioning to gain extract information. Written communications skills are needed to write coherent, organized, and understandable agreements, memorandums of understanding, and other legal paperwork needed in the mediation process. Additionally, a mediator needs to know and understand non-verbal communication (Montana Mediation Association, 2014).

5. References

5.1. AllBusiness. (2017). Pros and cons of arbitration. Retrieved from https://www.allbusiness.com/pros-and-cons-of-arbitration-4128-1.html American Arbitration Association. (n.d.). Qualification criteria for admittance to the AAA National Roster of Arbitrators. Retrieved from https://www.adr.org/sites/default/files/document_repository/Qualification%20Criteria%20for%20Admittance%20to%20the%20AAA%20National%20Roster%20of%20Arbitrators.pdf Baltimore Federal Executive Board. (2017). Mediator qualifications and standards of practice. Retrieved from http://www.baltimore.feb.gov/index.php/adr-council/53-mediator-qualifications-and-standards-of-practice1 Benton, T. (2015). The advantages and disadvantages of mediation. Retrieved from https://www.linkedin.com/pulse/advantages-disadvantages-mediation-terri-benton Kelly, B. (2017). Qualifications needed to become a Court Mediator. Retrieved from http://work.chron.com/qualifications-needed-become-court-mediator-22320.html Lindsey, T. (n.d.). Qualifications for becoming an arbitrator. Retrieved from http://work.chron.com/qualifications-becoming-arbitrator-5992.html Montana Mediation Association. (2014). Certified Mediator qualifications & certified Family Mediator qualifications. Retrieved from http://mtmediation.org/wp-content/uploads/2015/04/mtma-certified-mediator-certified-family-mediator-qualifications-rev-3714.pdf Murray, J. (2017). What are the benefits and drawbacks of arbitration? Retrieved from https://www.thebalance.com/what-are-the-benefits-and-drawbacks-of-arbitration-398535

6. Eric Showalter HRM/420 4 Dec 17 Charlie Burr