Alternative Dispute Resolution Writing Assignment
The three tools for alternative dispute resolution are negotiation, mediation and
arbitration. Our textbook, Essentials of Negotiation, defines the term negotiation as “a form of
decision making in which two or more parties talk with one another in an effort to resolve their
opposing interest.” Roy J. Lewicki et al., Essentials of Negotiation 3 (2024). Mediation is a
collaborative process by which communication is facilitated between parties involved in a
dispute by an independent third-party mediator for the purpose of the parties to resolve the
conflict. Christy Bieber, J.D., Mediation Vs. Arbitration: Differences, Pros And Cons (Feb. 7,
2024, 9:00 AM), https://www.forbes.com/advisor/legal/mediation-vs-arbitration/. Arbitration is
another form of alternative dispute resolution that is not only facilitated by a third-party
arbitrator, but the dispute between the parties is resolved by that arbitrator verses by the parties,
as with mediation. Id. As with each of the tools defined, there are pros and cons with their use.
An advantage to the use of negotiation as a form or dispute resolution is that it allows for
flexibility where “the parties may invent a solution that meets the objectives of all parties.” Roy
J. Lewicki et al., Essentials of Negotiation 7 (2024). According to author Mark Mirra, other
advantages to negotiation are that the parties have control over the outcome and there is no need
for a third-party to be involved in the dispute resolution. Mark Mirra, Arbitration vs Mediation vs
Negotiation: Understanding the Differences (June 13, 2023)
https://www.alignednegotiation.com/insights/arbitration-vs-mediation-vs-negotiation-
understanding-the-differences. Mirra continues in his article that there are little disadvantages to
negotiation and that the only limitation is the parties being unwilling to work together towards
resolution. Id. Our textbook does offer that time constraints can push parties to make rash
2
decisions in negotiations which could be a con as well as when the parties negotiating are intense
rivals. Roy J. Lewicki et al., Essentials of Negotiation 7 (2024).
Now turning the focus on some of the advantages for the use of mediation. Mediation is
a collaborative process which helps to preserve the relationship between the conflicting parties, it
is more cost effective than litigation when the parties can come to a resolution and the parties are
more likely to adhere to the terms of their agreement since they come to the solution themselves.
Id. Mediation has some drawbacks. It will only work if the parties are “willing to compromise
and communicate with each other,” which is not always the case. Id. Additionally, if one of the
parties to the mediation doesn’t understand the mediation process or if there is an apparent
imbalance of power, one party may agree to a less than favorable solution. Id. Finally, the
mediator facilitating the proceedings cannot force the parties to come to an agreement. Id.
There are some advantages in using arbitration for dispute resolution including the
following: confidentiality, finality and choice of arbitrator. ADR Times,
https://adrtimes.com/arbitration-pros-and-cons/ (last visited Aug. 26, 2024). To expand on these
advantages a bit, let’s look at confidentiality first. According to the ADR Times article, the
arbitration proceedings are not open to the public and therefore the agreement the parties come to
will not be released and cause embarrassment or damage either party’s reputation. Id. Second,
the arbitrary proceedings are final with “very little room for appeal, and even if they may be
reviewed, the grounds for setting aside and award are specific and limited…” Id. Finally, the
parties have the ability to choose their arbitrator, who is skilled and knowledgeable in a specific
area of expertise making the dispute resolution more efficient. Id. However, there are some cons
to the use of arbitration which according to the ADR Times Article includes the exclusion of the
rules of evidence. Since the rules of evidence do not apply in arbitration, “the other party may
3
submit proof of their legal claim that would not otherwise be admissible.” Id. Additionally, Ms.
Bieber adds in her article, that in arbitration the parties may be forced to solve a dispute when
they would prefer to litigate in court and the parties are “bound by the decisions the arbitrator
makes, and neither party may be as happy as if they had come to the compromise themselves.”
Christy Bieber, J.D., Mediation Vs. Arbitration: Differences, Pros And Cons (Feb. 7, 2024, 9:00
AM), https://www.forbes.com/advisor/legal/mediation-vs-arbitration/.
When looking at each of these methods as to how they are binding to the parties,
according to The Negotiation Academy, negotiation is non-binding until the parties come to an
agreement that is papered “through a formal written contract outlining the agreed-upon terms and
conditions.” The Negotiation Academy, Are Negotiations Legally Binding (Oct. 5, 2023)
https://www.necademy.com/negotiation-skills/are-negotiations-legally-binding/. The same is
true for mediation. Mediation is non-binding and the parties are not required to resolve their
conflict using this tool of dispute resolution according to Ms. Bieber. Christy Bieber, J.D.,
Mediation Vs. Arbitration: Differences, Pros And Cons (Feb. 7, 2024, 9:00 AM),
https://www.forbes.com/advisor/legal/mediation-vs-arbitration/. “Nothing agreed to in the
mediation is enforceable until submitted to the court and entered into a judgement.” Id.
Arbitration is the strictest of the three. According to Mirra, the neutral third party will make the
final decision after hearing both parties’ argument, and that decision is “often binding, meaning
both parties must abide by it.” Mark Mirra, Arbitration vs Mediation vs Negotiation:
Understanding the Differences (June 13, 2023)
https://www.alignednegotiation.com/insights/arbitration-vs-mediation-vs-negotiation-
understanding-the-differences.
4
One federal agency that supports dispute resolution is the Federal Mediation and
Conciliation Service. Its mission statement is “The Agency helps build better relationship
through joint problem-solving and constructive responses to inevitable conflict.” FMCS, Mission
& Values, https://www.fmcs.gov/aboutus/mission-values/ (last visited Aug. 26, 2024). FMCS
has posted their policies and procedures on their website which are included in the Code of
Federal Regulations. FMCS, Arbitration Policies and Procedures from the Code of Federal
Regulations, https://www.fmcs.gov/services/arbitration/arbitration-policies-and-procedures/ (last
visited Aug. 26, 2024). An association that supports the mediation is the American Association
of Mediators. Their mission is to “provide a place and space for mediators to hone their craft,
create connections while advancing the quality of mediation for consumers through the creation
of national standards and guidelines for practice.” American Association of Mediators, About Us,
https://americanassociationofmediators.org/about/ (last visited Aug. 26, 2024). The AAM
includes the “Standards of Practice” for mediation on their website, including the Model
Standards of Conduct for Mediators. American Association of Mediators, Standards of Practice,
https://americanassociationofmediators.org/standards/ (last visited Aug. 26, 2024).
Clients can use these tools in a multitude of ways, depending on what is being disputed;
for example, if it is a dispute from a contract, the contract may contain language dictating the
type of dispute resolution process the parties must engage in. ADR Times,
https://adrtimes.com/arbitration-pros-and-cons/ (last visited Aug. 26, 2024). Negotiation, by
default, would be the sensible and least expensive choice to engage in first if the parties “prefer
to negotiate and search for agreement.” Roy J. Lewicki et al., Essentials of Negotiation 7 (2024).
Mediation would be less expensive than arbitration or litigation in court per Mirra. Mark Mirra,
Arbitration vs Mediation vs Negotiation: Understanding the Differences (June 13, 2023)
5
https://www.alignednegotiation.com/insights/arbitration-vs-mediation-vs-negotiation-
understanding-the-differences. And finally, arbitration would cost the most of the three tools, as
the cost of hiring a third-party arbitrator and the location of the arbitration pursuant to state and
local rules and regulations can be expensive. Id.
Matthew 18:15 tells us that if we have a conflict with our brother then we should go to
him, confront him and discuss the conflict, which is in line with negotiation. Matthew 18:15
(English Standard). Scripture goes on to say that “But if he does not listen, take one or two
others along with you, that every charge may be established by the evidence of the two or three
witnesses.” Matthew 18:16 (English Standard). This verse describes mediation. And finally,
arbitration is described in verse 17, “If he refuses to listen to them, tell it to the church.” Matthew
18:17 (English Standard). All three tools for dispute resolution, in my opinion, follow God’s law
for working out conflict with our brother or sisters in Christ.
6
Powered by TCPDF (www.tcpdf.org)
