Alternative Dispute Resolution (ADR)

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Alternative Dispute Resolution (ADR) by Mind Map: Alternative Dispute Resolution (ADR)

1. Mediator Qualifications

1.1. ONE

1.1.1. Mediator must have a general, overall understanding about practical application of mediation. They must have good reasoning abilities as well as keen listening skills. It could be expected that a degree in law is a requirement, however, conflict resolution management, psychology, communication or such other course is ideal, would be sufficient. (Kelly, 2016)

1.2. TWO

1.2.1. Mediators must have state wide training and possess state wide certifications from appropriate courses. 20 hour courses. The training should also specifically relate to the area of mediation that the candidate wishes to practice. Mediation is applicable to virtually every kind of dispute such as divorce, child custody, personal injury and breach of contract. (Kelly, 2016)

1.3. THREE

1.3.1. To become a court mediator, a candidate requires experience in observing and conducting mediation either singly or with another mediator. References: at least two written references from individuals familiar with the applicant’s skills and abilities in conflict resolution and mediation. (Kelly, 2016)

1.4. FOUR

1.4.1. Mediators are subject to applicable statutory obligations and meet the expectations of the parties regarding the confidentiality of all communications made within the mediation process. Apart from statutory duties to report certain kinds of information, a mediator is obligated not to disclose to a non party, directly or indirectly, any information communicated to the mediator by a party to the mediation process. (Baltimore, 2016).

1.5. FIVE

1.5.1. A mediator is obligated to explain the mediation process to the parties at the outset, including the role and function of the neutral, and to inform the parties of their rights to refuse any offer of settlement or to withdraw from mediation at any time and for any reason. This obligation continues throughout the mediation process. (Baltimore, 2016)

2. Three Advantages of Arbitration

2.1. Advantage One

2.2. Advantage Two

2.2.1. Choice of Decision Maker – Parties can choose a technical person as arbitrator if the dispute is of a technical nature so that the evidence will be more readily understood. In other words, an arbitrator can be one who specializes in the issue that needs to be resolved. (Mediate.com.,2016).

2.2.2. Privacy – Arbitration hearings are confidential, private meetings in which the media and members of the public are not able to attend. In addition, final decisions are not published, nor are they directly accessible. This is useful to the employer who does not want his ‘dirty laundry’ to be made public such as in sexual harassment cases. (Mediate.com.,2016).

2.3. Advantage Three

2.3.1. Efficiency – Arbitration can usually be heard sooner than it takes for court proceedings to be heard. Also, the arbitration hearing should be shorter in length, and the preparation work less demanding. (Mediate.com.,2016).

3. Three Disadvantages of Arbitration

3.1. Disadvantage One

3.1.1. Cost - One or both of the parties will pay for the arbitrator’s services, while the court system provides an adjudicator who does not charge a fee. The fees for an arbitrator can be hefty. To give an example, for an amount of claims up to $100,000, the minimum fee for a single arbitrator is $2,000. The maximum fee can reach ten percent of the claim. However, supporters of arbitration argue that this should be more than compensated for by the potential for the increase in the efficiency of arbitration to reduce the other costs involved. (Mediate.com, 2016)

3.2. Disadvantage Two

3.2.1. Splitting the Baby’ – Thomas Crowley states that because of the relaxation of rules of evidence in arbitration, and the power of the arbitrator to ‘do equity’ (make decisions based on fairness), the arbitrator may render an award that, rather than granting complete relief to one side, splits the baby by giving each side part of what they requested. Thus both parties are leave the table feeling that justice was not served. (Mediate.com, 2016).

3.3. Disadvantage Three

3.3.1. Narcotic/Chilling Effects – The chilling and narcotic effects are two related concepts, which many theorists, including David Lipsky, believe to be inadequacies of interest arbitration. Chilling occurs when neither party is willing to compromise during negotiations in anticipation of an arbitrated settlement. Two measures most commonly used to weigh this effect are: the number of issues settled during negotiations versus the amount of issues left for arbitration, and a comparison with the management’s and union’s initial offers (chilling takes place when the two parties take extreme positions and are not willing to budge). The narcotic effect refers to an increasing dependence of the parties on arbitration, resulting in a loss of ability to negotiate. Common methods of assessing the narcotic effect are: the proportion of units going to arbitration over time and, perhaps more importantly, the number of times an individual unit returns to arbitration over a series of negotiations.(Mediate.com.,2016).

4. Five Arbitrator Qualifications

4.1. ONE

4.1.1. Earning a bachelor's degree is the first step toward a career in arbitration. Students might choose a major that can prepare them to become familiarized with the legal or industry experience necessary for a career in this field; Arbitration specialties include construction, real estate, insurance and labor relations. Relevant degrees could include business programs or those that prepare students for law school, such as political science, English or history majors. (Study.com, 2016)

4.2. TWO

4.2.1. A Juris Doctor (JD) or Master of Business Administration (MBA) could be the most relevant graduate degree option. Normally, a law degree takes three years to complete, while an MBA can be earned in two years. Both program types provide a broad professional education. Law schools, however, generally offer more opportunities to begin specializing in arbitration. Earning a stand-alone master's degree or graduate certificate in dispute resolution could also provide relevant training for an arbitration career. (Study.com, 2016)

4.3. THREE

4.3.1. Those who would like to become arbitrators choose to prepare for this career by practicing law need to become licensed attorneys once they complete law school. State requirements vary, but obtaining a license is usually achieved after earning a law degree, applying for admission to the state bar association and passing the bar exam. Others who hope to specialize in such industries as construction or real estate will also need state-issued licenses in order to begin acquiring work experience as real estate agents, contractors or architects, for example. (Study.com, 2016)

4.4. FOUR

4.4.1. A key qualification for arbitrators is expertise in the industry or legal specialty in which they will handle disputes. Prospective arbitrators should expect to spend several years practicing law or working in a business, government agency or other organization. The amount of experience required varies; applicants for arbitration rosters and panels could need anywhere from 5-15 years of related work experience. (Study.com, 2016).

4.5. FIVE

4.5.1. Arbitrators typically find work by belonging to panels or rosters. These are listings of prescreened arbitrators who've been certified by a state court or professional arbitration association to serve in various specialty areas. These lists are provided to parties entering the arbitration process. (Study.com, 2016)

5. What is Mediation?

5.1. Mediation is a means a resolving issues between parties without litigation. Final decisions are agreed upon by all parties and are not legally binding by a court of law.

6. Advantages of Mediation

6.1. Advantage One

6.1.1. Mediations are less costly, for example, in issues related to construction. Most mediators who specialize in construction charge by the hour and the mediation usually is completed in one or two days. The cost of time away from business will be minimal. (Construction Dispute, n.d.)

6.2. Advantage Two

6.2.1. Parties don't have to wait excessive time for a court date. This can be important as deadlines approach or ever, statutes of limitation. (Construction Dispute, n.d.)

6.3. Advantage Three

6.3.1. Parties can represent themselves rather than hire an attorney. Getting prepared for mediation is far easier and simpler than is required to prepare for arbitration or litigation. It is not necessary to have an attorney but they may participate at the request of a party. If you choose binding mediation, you will have a similar finality as binding arbitration offers without the formalities and costs associated with binding arbitration. (Construction Dispute, n.d.)

6.3.2. Mediation has no formal rules. This means that if one party is timid and the other is loud and aggressive, the timid person runs the risk of losing some of what is legally owed to him. Mediation are not ideal ways to get to the truth of the matter. In a courtroom setting, lawyers have many tools to get people to testify and produce evidence that are not available to mediators. (Find Law, 2016).

7. Disadvantages of Mediation

7.1. Disadvantage One

7.2. Disadvantage Two

7.2.1. Mediation may not be appropriate for certain issues. Domestic abuse, for example, would not be because of the psychological factors involved. Some experts in abusive relationships do not believe that mediation is appropriate in cases where there has been domestic violence. They believe that mediation might just provide another way for the abuser to harm the victim. Depending on the nature of the victim's injuries, she may not be able to assert her position in mediation informal setting. (Find Law, 2016).

7.3. Disadvantage Three

7.3.1. Lack of cooperation - Both parties must have a willingness to come to an agreement, however, this does not always happen. Mediation may not be successful and the parties may not reach an agreement on their dispute. In those cases, the parties will have to go through the expensive process of trial after wasting their time and money in mediation. (Find Law, 2016).

8. References