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mediation and arbitration

Third party intervention is not uncommon, when a conflict that must be resolved somehow happens and all else fails then conflict resolution third party interventions are needed, below are descriptions of mediation and arbitration as the two main third party intervention processes.

1. Mediation: the mediator helps both parties to understand the various positions of the all persons involved, in the hope that a mutually acceptable agreement is possible.

2. Arbitration: where each of the involved parties explains their case to the arbitrator, who then presents a solution which is binding on all parties.


Mediation

The mediator
It takes a special type of person to be a mediator. Not only must the individual be acceptable to both sides, but the person must also possess special qualities like :

•  Excellent Interpersonal skills
•  Good listening skills
• Creativity
• Persuasiveness and influencing skills
•  Excellent communication skills
•  Impartiality and independence
•  Counseling, coaching and mentoring skills - see also:  Coaching/Training/Counselling/Mentoring
•  Flexibility
•  Patience

The Mediation Process

There are four basic steps in the mediation process:

1.Opening begins the mediation.
First, the role of the mediator and the process he proposes to start the resolution process are laid out.
The ground rules are agreed, along with how the parties will relate to each other and how there should be mutual respect and refrain from blaming each other.

2. Initial discovery phase
The needs of each party, their aspirations and concerns are presented; misperceptions are clarified. Every effort is made to help the parties understand their own positions and those of the other stakeholders.

3. Compromise
Once both sides have outlined their positions, options for solutions can be encouraged, generated and evaluated. Possible concessions and bargains can be suggested and reviewed. Tentative agreements and bargains can be struck and time frames can be agreed.

4. Close
This captures the mutual agreements, ensuring that all parties are satisfied and that the resolution is acceptable, pragmatic and perceived as fair. Sometimes a review process is built into the agreement. Agreements can be set down on paper or accepted verbally.

 

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Arbitration

Here an independent third party decides on the final outcome, which is legally or contractually binding on both sides. The parties go to arbitration knowing they have to abide by the final decision, even if they disagree with it.

The arbitrator (unlike the mediator) is directly interested in the content, facts and reasons that resulted in conflict, because he/she must weigh all the evidence, arguments and surrounding factors before coming to a decision. There has to be a judgment which the arbitrator feels reflects the facts and is fair to all.

Arbitration is particularly useful when there is conflict over facts, a point of law or a contractual detail that can only be resolved by an expert’s ruling. Thus, arbitration is usually employed in commercial situations. It offers little when the substance of the dispute is more emotional than objective. If the parties want justice or vindication, arbitration is not seen as satisfactory.

Arbitration also suits protracted conflict, when there is stalemate between the parties.This is because arbitration, unlike mediation, does not require co-operation between those in conflict. This is why, in some cases, once mediation has failed, arbitration is a viable alternative.

 
Advantages of Arbitration

• Both sides can put their case openly
•  It does not need the goodwill or trust of the parties to move the process forward
•  It does not require process skills to move the debate forward
•  It allows for expert evidence to be heard
•  The process is objective
•  The process is open to third party inspection
•  It can balance unequal power distribution between the parties
•  The parties can use advocates if they feel inadequate or are not used to presenting their case or complex issues for themselves
•  It can work to a fixed timetable
•  The outcome can be binding in law on the parties

 
Disadvantages of Arbitration

• It can be costly, which would disadvantage the financially challenged
•  It does not take account of the emotional needs of the parties
•  It encourages an adversarial approach, with each party taking the strongest and, consequently, the most extreme position they can; in addition, it calls for excellent
• verbal and presentation skills
•  The process is fixed and allows for very little variation
•  It may end in a lawful settlement which might not be a just settlement
•  It may settle the difficulties between the parties but the conflict, especially the emotional component, can remain
•  It is possible for an outcome to be imposed that is thought to be unacceptable to those involved, and so the conflict is far from being resolved


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