Negotiation and Mediation

Alternative dispute resolution methods differ in the degree of formality involved and the third participant type.

– Negotiation = least formal method without third parties…Mediation = informal but involve the participation of a third party

 

Negotiation

– The simplest form of ADR

– A process in which the parties attempt to settle their dispute informally with or without attorneys to represent them

– Next step after negotiation is usually the dispute-resolution process

 

Preparation for Negotiation (3 elements)

– Documents

– Other evidence

– Witness should be prepared to testify

 

Assisted Negotiation

– Assistance of a third party

– Mini-trials, early neutral case evaluation, facilitation, and summary jury trial

Mini-trials – A private proceeding in which each party’s attorney argues the party’s case before the other party. A neutral third party (adviser and expert) is also present. If the parties fail to reach an agreement, the adviser renders an opinion as to how a court would likely decide the issue. Each party decide whether to settle or to take it to court

Early Neutral Case Evaluation – The parties select a neutral third party to evaluate their respective position. The evaluator then assesses the strengths and weaknesses of the parties’ position and uses it as the basis for negotiating a settlement

Facilitation – Friendly and non-adversarial manner type. A third party assists disputing parties in reconciling their differences. A third party set the schedule and carries offers back and forth if they refuse to face each other. Facilitators are not to recommend solution but a mediator is expected to propose solutions.

 

Mediation

– One of the oldest forms of ADR

– Mediator works with both sides and talk separately as well as jointly

-Emphasizes points of agreement, and helps the parties to evaluate their options

– Although the mediator may propose a solution (mediator’s proposal), he/she does not make a decision resolving the matter. Mediator charges a fee which can be split between two parties

– Some states (e.g. Florida) require undergoing ADR (mediation for most cases)

– Treat in separately form of assisted negotiation because traditionally it has been viewed as an alternative to negotiation.

– Mediators play a more active role than the neutral third parties in negotiation.

– Characteristics of mediation are being combined with those of arbitration.

– Binding mediation – the parties agree that if they cannot resolve the dispute, the mediator can make a legally binding decision.

– Mediation-arbitration – the parties first attempt to settle their dispute through mediation. If no settlement is reached, the dispute will be arbitrated.

 

– Advantages of Mediation: Fewer procedural rules, proceedings can be tailored to fit the needs of parties brings the parties together, and parties choose the mediator

– Disadvantages of Mediation: Mediator fee, informality and the absence of a third party referee, no deadline that would slow down the process, and less willing to make concessions (slow the process or even cause it to fail if one party does not like how the process is going)

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