Conflict Resolution: Mediation and Arbitration

(Source: www.aisrael.org)

Conflicts and disputes are unavoidable phenomena in people's business and private lives. Depending on the nature of a conflict and the ability of the conflicting parties to communicate with each other during a conflict, a conflict may either get resolved or turn into a dispute. Although most conflicts get resolved by the parties involved, disputes often require an intervention of the third party, commonly known as an arbitrator or a mediator. Arbitrators and mediators can be used in a variety of different dispute situations.

Arbitrators and Mediators

Arbitrators and mediators play important roles in dispute resolution. While an arbitrator is similar to a mediator in that both have to be unbiased toward conflicting parties, their roles are also similar in that both mediator and arbitrator have to exhibit active listening skills, summarizing skills, and reframing skills, as well as the ability to manage the dispute so that it does not turn into a screaming match or a violent outbreak. According to Abigail and Cahn (2011), a mediator has to be a neutral party, has to ensure confidentiality to his or her clients, has to exhibit good communication skills, create a nurturing climate; encourage open and sincere communication while refraining from making decisions for the conflicting parties (p. 197-198). Mediation process is not only aimed at improving communication between the conflicting parties, but it also can re-establish good relationship between the parties. Arbitrators, on the other hand, have to listen to both of the parties, ask questions, and make a decision or judgment at the end based on the evidence and information supplied by both of the parties.

The Clarifying Role of Mediators and Arbitrators

In order to fully understand the conflict dilemma, arbitrators and mediators play a clarifying role, in which they are to listen to a conflict issue and help the parties either to find an acceptable resolution or to provide a resolution. According to Hartman and Crume (2007), “The clarifying role is one in which the facilitator is a gatherer of information, helps participants reframe the problem, uses active listening to engage participants in discussion, [and] provides feedback to reframe issues of concern” (p. 137). Only by fully understanding the nature of the dispute and underlying conflict issues can arbitrators and mediators manage the communication process between the conflicting parties and either help them to come up with a resolution, or to make a resolution for them.

Differences in the Role Functions of Arbitrators and Mediators

Arbitrators and mediators perform different functions in dispute resolution. The function of an arbitrator is similar to that of a litigator or a judge because an arbitrator has to make the final decision for the conflicting parties. According to the American Arbitration Association website (2007), an arbitrator’s function involves rendering a “final and binding decision, known as an “award.” Awards are made in writing and are generally final and binding on the parties in the case” (Arbitration, para. 1). Prior to appearing before an arbitrator, the parties have to sign a form that they are going to abide by the arbitrator’s decision in a given conflict. This implies that the arbitrator’s decision cannot be disputed or appealed by either of the parties.

Unlike arbitrators, mediators are not given the power to make binding decisions for the conflicting parties. The function of mediators, according to Abigail and Cahn (2011) is to “facilitate communication between the conflicting parties so that they may work out their own mutually acceptable agreement” (p. 195). Mediators, unlike arbitrators, let the participants to come to a resolution that satisfies both of the parties involved in a dispute. Like arbitrators, however, mediators have to write up a final agreement in which they state the each party’s obligations and requirements to which both of parties agreed during the mediation session.

Because of the different functions performed by arbitrators and mediators during dispute resolution, the effectiveness of arbitration and mediation may differ. More people favor mediation over arbitration because during a mediation session the parties are allowed to communicate with each other in order to express concerning issues and to find a mutually satisfying solution. Since during mediation the parties can resolve their dispute and come up with a reasonable resolution on their own, the parties are more likely to follow the resolution. Also, because during a mediation session the parties can negotiate the solution to find the most satisfying and workable resolution, an arbitration hearing can result in a win-lose outcome, or a compromise, which might leave one or both parties dissatisfied with the solution.

Effectiveness of Mediation and Arbitration

Mediation and arbitration can be effective in solving various kinds of disputes. According to Wall, Stark, and Standifer (2001), mediation can be effective in solving disputes involving “international relations, labor management negotiations, community disputes, school conflicts and legal disputes” (p. 371). Mediation is effective in those dispute situations where the parties are either not communicating with each other, or have given up looking for a mutually satisfying solutions. Arbitration is effective in solving dilemmas that are either legal in nature, or in situations where one or both of the parties are willing to file a court claim. Arbitration becomes a reasonable option when either one or both of the parties are unwilling to communicate with each other, or to resolve the dispute through a mediator. When involved in a dispute, both of the parties have to realize that there are several alternatives to dispute resolution they can consider. 

Sometimes, mediation is considered more effective than arbitration because mediation sessions are usually conducted in a somewhat relaxed and non-threatening atmosphere. Arbitration hearings, on the other hand, resemble small claims court proceedings, where a judge hears both parties and renders his or her verdict at the end.

American Arbitration Association

American Arbitration Association provides arbitration and mediation services as alternatives to dispute resolution as well as conflict avoidance services that conflicting parties may take into consideration. The American Arbitration Association website not only describes what each service has to offer, but also provides a conflict party with opportunities to find a skilled and certified mediator or an arbitrator, while conveniently listing their charge fees. Not only does the organization serve domestically, but also its services extend internationally. With a customer-friendly navigation and customer service support, the organization is committed to serve clients from the initiation of the claim through the achievement of conflict resolution. This website is a vital source for those people who are involved in a conflict but are unsure of which alternatives to dispute resolution to choose.

Disadvantages of Arbitration and Mediation

While there are advantages to arbitration and mediation, there also can be some minor drawbacks. For example, mediation can be time consuming, since parties have to find the most agreeable solution to their conflict. The disadvantage of arbitration is that the arbitrator makes the final decision for the parties. As a drawback for both mediation and arbitration, is that both of the conflicting parties have to spend time and money in order to solve their dispute. Thus, I would recommend mediation and arbitration only when solving a conflict on their own seems to be impossible for one or both of the parties.

Summary and Conclusion

Mediation and arbitration are two options that exist among other alternatives to dispute resolution. While arbitrators and mediators provide somewhat similar services in that they give both parties a chance to explain their side of the argument, the outcomes of arbitrations and mediations may differ. In an arbitration hearing an arbitrator usually is the one who decides the resolution for both of the parties, while in a mediation session, it is the parties who have to come up with a workable and satisfying resolution. When either one or both conflicting party cannot decide whether to use arbitration or mediation, American Arbitration Association can provide the necessary knowledge and resources to make the right decision as to which alternative to use as well as assist the potential client in finding an arbitrator or a mediator. Conflicting parties have to remember that they are not alone: With help from professional sources, such as American Arbitration Association, their disputes can be successfully resolved.



References:

 Abigail, R.A., & Cahn, D.D. (2011). Managing conflict through communication. (4th ed.).
       Boston, MA: Pearson Education Publishing.
American Arbitration Association. (2007). Arbitration and Mediation. Retrieved January 29,
       2012, from http://www.adr.org/arb-med.
Hartman, R.L., & Crume, A.L. (2007). Public forum mediation: A training exercise for
     conflict facilitation skills. Industrial and Commercial Training, 39(3), p. 137. Retrieved
     January 29, 2012, from ProQuest student database. (Document ID: 1343646601).
Wall, J.A., Stark, J.B, & Standifer, R.L. (2001, June). Mediation: A current review and
     theory development. The Journal of Conflict Resolution, 45(3), pp. 370-391. Retrieved
     January 30, 2012, from JSTOR student database.