Parties to a dispute usually seek amicable methods of resolving their differences. There are two major approaches to dispute resolution, and these are adversarial and non-adversarial. Adversarial mechanisms refer to the methods in which parties contest a legal issue, and the matter is resolved based on the preponderance of the evidence (Merrills, 2002). Adversarial methods are mostly court-sanctioned and litigation is the most common method of adversarial dispute resolution. On the other hand, non-adversarial methods are often facilitated outside the court setting, though they may sometimes be recommended by the courts (Parselle, 2005). Non-adversarial methods are mostly conciliatory and seek to restore the relationships between the parties. In the history of dispute resolution, non-adversarial methods have proven to be a more effective method of resolving disputes as compared to the court litigation process.
Non-adversarial methods of dispute resolution gained prominence due to the astronomical costs of litigation, time constraints, and broken relationships (Savun 2002, p. 42). Affected parties began looking for alternative methods of handling their legal battles. Non-adversarial methods became to be generally referred to as alternative methods of dispute resolution. A number of these methods include: mediation, arbitration, conciliation, and negotiation (Brookes & McDonough 2006, p. 23). The above methods have many advantages as compared to court litigation. Court litigation is expensive, rigid, and time consuming. On the other hand, these methods are cheaper, flexible, and can be completed within a relatively short period (Adetoro 2005, p. 569). However, the major undoing of these methods is the lack of an enforcement mechanism. While court decisions can be easily enforced, decisions arising out of a mediation or negotiation for example, are only enforceable at the option of the parties.
Mediation is one of the most preferred non-adversarial methods. The process involves a third party, who performs the role of an intermediary (Walde 2006, p. 230). A mediator helps parties to a dispute find a way out of a dispute. Parties must agree to refer their issue to a mediator who will then help them work out a just solution. The mediation process is often referred to as an advanced negotiation. In negotiation, parties agree amongst themselves to reach at a compromise, without necessarily invoking the assistance of a third party. In mediation, a third party who plays the role of a neutral umpire must be present (Parselle 2005, p. 25). A key element of the process is in decision-making. Unlike the court process where the judge or magistrate makes a decision that is binding on all the parties, in mediation, the mediator helps the parties make a decision. In most instances, the parties make their own decision. However, in technical matters, the umpire may volunteer a number of workable solutions, from which the parties may pick one.
Before a mediator could embark on helping the parties to a dispute, the involved entities must cede their power to the umpire (Bush & Folger 2005, p. 43). In most cases, the parties refer the matter to the mediator who then decides whether he or she should take up the case. In commercial cases, parties may include in their contract a provision to refer a matter to mediation (Carrol & Mackie 2001, p. 23). If such a clause exists, parties have no choice but to refer the matter to mediation, before embarking on other dispute resolution mechanisms. In practice, a clause to refer an issue to mediation first before proceeding to court, doe not usurp the powers of the judicial process, according to the rule in the case of Scot v. Avery. In the event that the process does not yield fruit, the parties are always free to move to court (Dingwall & Greatbatch 2000, p. 56).
Normally, the parties make a detailed explanation of the issue. The details include the time of occurrence, place of incidence, and the events leading to the case. Such details must be articulate enough to allow the mediator to isolate them for determination Falconer 2004, p. 16). Specifically, contentious issues must be clearly outlined. Each party is given an opportunity to give their side of the story to allow the mediator investigate the facts. Once the parties have lodged their claims, the mediator proceeds to set the venue and date for the investigation of facts, hearing, and eventual determination of the matter (Genn 2010, p. 12). Before the actual hearing, the parties formulate a set of rules guiding the entire process. Parties agree on the time, juridical seat of the umpire, and the mode of conduct of the proceedings (Gibbons 2007, p. 32). The preliminaries also cover the strategies of the meeting, including the desired outcome. At the start of the process, the mediator makes opening remarks, usually welcoming the parties and briefly describing the dispute. Depending on the magnitude of the issue presented, the mediator may have a caucus with each party separately (Johnston 2008, p. 14). At this point, each party gives their view on the matter, and the possible solution.
During the actual process, the mediator plays a huge role in ensuring that the parties represent their positions accurately. However, the mediator does not force the parties to conform to a particular technique or form (Haynes, Haynes & Fong 2004, p. 32). Instead, he or she directs the parties on how to articulate issues. Specifically, he or she ascertains that the rules of natural justice are adhered to (Mayer 2000, p. 43). Each party must be accorded the opportunity to represent their side of the story. The mediator uses various techniques to get the parties to agree on the subjects raised. To begin with, the mediator must establish trust with the parties, by disclosing any areas of conflict of interest, demonstrating impartiality and objectivity, and showing expertise on the matters in question (Menkel-Meadow 2010, p. 47). In the course of the proceedings, the mediator helps the parties to identify the important points for discussion and directs how such points will be tackled. A mediator must know how to keep the conversation going by extending the talks into options not previously explored (Roebuck 2007, p. 105). This way, parties are able to examine all the important points and review the various options open to them. Besides, he or she facilitates decision making by exposing the parties to the available options. Once the parties agree to a particular option, it is recorded as the outcome of the process. In some cases, the parties may opt to have the decision registered with an advocate or the court for it to be enforceable. However, parties are not bound by the outcome. Indeed, parties can seek other avenues for redress if they still feel aggrieved (Palmer & Roberts 2005, p. 63).
Mediation has the advantages of flexibility, cost-effective, time-saving, and conciliatory (Sander & Rozdeiczer 2005, p. 37). Parties to a dispute emerge as allies instead of rivals. Comparatively, the method is cheaper than the court process. A court process involves filing of documents, issuing summons, and paying lawyers’ fees and court fines. In terms of flexibility, parties choose the venue and times for the conduct of the proceedings. On the other hand, a court process is rigid as it follows a strict court calendar (Spencer & Brogan 2006, p.39). However, mediation has a number of disadvantages. The major problem with this method is the lack of an enforcement mechanism and the non-binding nature of the outcome. Parties can easily vacate the outcome of the process and seek other methods of redress (Savum 2008, p. 29).
In the CEM case study, mediation is desirable as the parties are in a continuing relationship. A method that achieves conciliation and restores relationships is required in this case. Besides, the parties will need to do several deliberations about the matter in seeking a fair outcome. Owing to the urgency of the matter, a court process will take the parties longer to resolve. Besides, it may be expensive for the parties to prosecute the matter in court. Considering that the said covenant was entered into under an old regime of the law, it may be more difficult to reconcile it with new provision of the law. It is therefore helpful to have a system that incorporates the elements of flexibility and adaptation for the matter to be determined finally. Mediation will prove vital as it incorporates these elements. By relying on this method, the parties will find a solution to their problem, while maintaining old relations. However, the method has a major disadvantage. Once a decision is reached, it may not be easily enforceable. Parties will resort to other processes to enforce their rights under the agreement. Either party can opt out hence cripple the entire process. The non-binding nature of the agreement makes it untrustworthy.
Adetoro, D 2005,Examining Mediation as the Opportunity Cost of Litigation: Can it be Sustained in the Long Term? Journal of Peace Resolution, 42(5), p 563-583.
Brookes, D & McDonough, I 2006, The Differences between Mediation and Restorative
Justice/Practice. Scottish Centre for Restorative Justice. Retrieved from: www.restorativejusticescotland.org.uk/MedvsRJ-P.pdf
Bush, R & Folger, J 2005, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition, (2nd Edition). San Francisco: Jossey-Bass.
Carroll E & Mackie K 2001, The Art of Business Diplomacy. The Hague, The Netherlands: Kluwer Law International Publishing.
Dingwall, R & Greatbatch, D 2000, ‘The Mediation Process’ in Davis, G Monitoring Publicly Funded Family Mediation. London: Legal Services Commission.
Falconer, H. (ed.) 2004, IRS: Managing Conflict in the Workplace. London: Lexis Nexis.
Genn, H 2010, Civil Mediation: A Measured Approach? Journal of Social Welfare & Family Law (32) 2.
Gibbons, M 2007, Better Dispute Resolution: A Review of Employment Dispute Resolution in Great Britain. London: Department for Trade and Industry. Retrieved from: http://www.berr.gov.uk/files/file38516.pdf
Haynes, J, Haynes, G, & Fong, L 2004, Mediation: Positive Conflict Management. Albany, NY: State University of New York Press.
Johnston, T 2008, Knowledge and Use of Mediation in SMEs. Research Paper, No 02/08. London: Acas. Retrieved from: www.acas.org.uk/researchpapers
Mayer, B 2000, The Dynamics of Conflict Resolution: A Practitioner’s Guide. San Francisco: Jossey-Bass.
Menkel-Meadow, C 2010, ‘Empirical Studies of ADR: The Baseline Problem of What ADR is and What it is Compared to’ in Cane, P & Kritzer, H (eds.) Oxford Handbook of Empirical Legal Studies.
Merrills, G 2002, International Dispute Settlement, (3rd ed). Cambridge University Press, Cambridge, UK.
Palmer, M & Roberts, S 2005, Dispute Processes: ADR and the Primary Forms of Decision-Making. CUP.
Parselle, C 2005, The Complete Mediator. New York: Weisberg Publications
Roebuck, D 2007, The Myth of ModernMediation. Arbitration, (26) 73. p 105-106.
Sander, F & Rozdeiczer, L 2005, ‘Selecting an Appropriate Dispute Resolution Procedure:
Detailed Analysis and Simplified Solution’, in Moffitt, M & Bordone, R (eds.) The Handbook of Dispute Resolution, San Francisco: Jossey-Bass.
Savun, B 2008, Information, Bias, and Mediation Success, Int. Stud. Quart, 52(1), p 25-47.
Spencer, D & Brogan, M 2006, Mediation Law and Practice. Cambridge University Press, New York.
Walde, T 2006, Efficient Management of Transnational Disputes: Mutual Gain by Mediation or Joint Loss in Litigation, Arbitration International, 22 (2) p 205-232.