Issues in the Mediation Process Responses to Questions
Posted On June 29, 2020
Issuesin the Mediation Process: Responses to Questions
Issuesin the Mediation Process: Responses to Questions
Responseto question 1. What are the advantages and disadvantages ofmediation? Is it likely to be successful? Is it likely to make theparties more or less hostile towardone another? How do thecosts in terms of time and money compare withlitigation?
Oneof the advantages of the mediation is that the dispute resolutionprocess is bilateral. Mediatory talks help in arriving at a disputeresolution between parties with openness. Secondly, mediation lendsitself as a solid platform upon which conflicting parties canarticulate and resolve conflict peacefully without involving thecourts. Besides, the approach plays a crucial role in maintainingrelations between disputing parties, and is less costly compared toother conflict resolution processes such as court settlements, whichmay require hiring lawyers to represent each party. Ideally, courtlitigation involves extra costs such as jury fee, compensations paidto expert witnesses, and the cost of hiring court reporters. It canbe inferred that adopting mediation in conflict resolution saves bothmoney and time. In the convention, the mediator allows each party togive its view of the conflict, after which the conflict can then beresolved based on the consensus. If the company and the other partiesinvolved in the conflict reach a consensus, an agreement can besigned to conclude the dispute. It is worth noting that mediation isbased on mutual understanding and free expression.
Inessence, mediation is preferred in conflict resolution because it issimple and fast, relatively economical, allows parties to adjust andrevise the substantive issues of the conflict, and offers worktowards a solution (National Paralegal College, 2017). However, oneof the disadvantages associated with mediation is that they cansometimes fail considering they are not always the last option. AsNational Paralegal College (2017) notes, a significant number ofmediation processes fail. Secondly, the process lacks constitutionaland procedural guarantee. Parties can always turn down the conditionsresulting from the mediations. Thirdly, success of the arbitrationprocess depends on the skills of the mediator. To be able to realizesatisfactory outcomes, a mediator must be neutral, yet both partiesmust have approved the mediator to guide the arbitration process.
Responseto Question 2. If your boss has no interest in mediation, does shereally have to be there? Can she send her attorney instead? If so,are there any conflicts ofinterest with respect to attorneyadvocate representation of which sheshould be aware?
Thesuccess of mediation processes rests on the willingness of bothparties to engage each other in ending the dispute. In this regard,it is vital for the manager to be involved, which will serve as ashow that both parties are committed to striking a lasting solution.Alternatively, the boss can send an attorney with an apparentmediation settlement agreement. Nevertheless, such a step is onlyrecommendable if the boss is not well versed in the issues at hand.However, the involvement of a lawyer has various associateddisadvantages such as the cost of hiring, time-consumingarbitrations, additional expert witnesses, court reporters, juryfees, and human cost on parties in case the arbitration fails(Ehrlich,2014).Responseto Question 3: Must the company actually participate in themediation? Can your boss (or her attorney) just sit there and refuseto speak?
Themanner in which the conflicting parties resolve different disputesare very critical in maintaining a friendly and working relations.Failure of enterprises or bosses to engage in relevant mediation doesnot only portray the company’s unwillingness to participate and becommitted to the mediation, but can also escalate the dispute andresult in costly lawsuits. Conventionally, the mediation processrequires willingness. At the same time, it is not necessary for thecompany to participate in the mediation process if it is notinterested in using the platform to resolve the conflict. The companycan resort to other alternatives, especially the court litigation, ifthe issues causing the dispute are very sensitive or if it is totallyconvinced that mediation cannot offer a lasting solution. Ehrlich(2014) discusses that negotiations are founded on openness and clearcommunication of the issues that relate to the dispute. Therefore,keeping silent and refusing to respond to questions raised by theother party might bring the mediation process to a standstill, makingthe process to fail.
Responseto Question 4: If your boss (or her attorney) does decide to engagein dialogue during the mediation, what are the risks concerninginformation that might be disclosed? If the mediation fails, can theformer employee use such information at trial?
Accordingto Hobbs(2012),the court acknowledges the confidentiality of mediation processes.The process of mediation recognizes the views and interests of bothparties involved in a conflict. Therefore, failing to engage inconflict will result in misunderstanding. Disclosing sensitiveinformation about the company might escalate the dispute orcompromise the image of the enterprise. Some of the common risks ofdisclosing confidential information about a company includeattracting related suits, compromising company reputation, amongother business issues. If it is not in the interest of either partyto disclose the actions of the mediation process, all the informationthat was revealed during the mediation process should be used in thecourts. Refusing to engage in dialogue might halt the process becausemediation can only offer a lasting solution to the dispute if theparties involved are willing to give their respective accounts in theconflict, which will enable the mediator to come up with varioussolutions that parties can decide on to end the dispute. This elementstresses on the need for disputing parties to consider changing themediation talk confidentiality agreement in related discussions(Seigel,2014).A former employee cannot use mediation information to push a trialbecause the conciliation proceedings are regarded confidential,unless the involved parties agreed that they could be used in courtlitigation process. Agreements arrived at in mediation can only beaccessed and utilized by either party based on the terms of agreedinformation disclosure. Therefore, the courts can only proceed torely on information from mediation talks if parties are comfortable.
Inconclusion, mediation helps in facilitating the resolution ofdisputes between parties with the aid of a mediator. The mediationprocess is a friendly platform on which disputing parties canarticulate and resolve conflict peacefully without the interventionof courts. Some of the advantages of the method include low costs,time saving, and straightforward passion. However, it is constrainedby the willingness of the conflicting parties and the ability of themediator to tailor the arbitration to the key objectives tactically.
Ehrlich,R. (2014), Shhhh!The Big Risk Associated With Mediation Confidentiality Nobody TalksAbout.Retrieved on February 22, 2017 fromhttp://www.mediate.com/articles/EhrlichR1.cfmHobbs,K. S. (2012), MediationConfidentiality and Enforceable Settlements: Deal or No Deal?.Retrieved on February 22, 2017 fromhttp://www.mediate.com/articles/hobbsk1.cfmNationalParalegal College (2017), Advantagesand Disadvantages of Mediation.Retrieved on February 22, 2017 fromhttps://nationalparalegal.edu/public_documents/courseware_asp_files/ADR/MediateHow/AdvantageMediate.aspSeigel,B. (2014), Minimizingthe Litigation Risk in Mediation.Retrieved on February 22, 2017 fromhttp://www.mediate.com/articles/SeigelB1.cfm