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Mediation and Arbitration: Effective Aleternatives to Lawsuits

As our society becomes more and more litigious, it is a pleasure to see the growth in the use of arbitration and mediation to solve disputes. Whether that’s a workplace issue, one between a landlord and a tenant, or a vendor and a customer, using alternative remedies for dispute resolution has been on the rise. Litigation can be incredibly costly, time consuming, drawn out, and frustrating.

Issues in the workplace that often result in lawsuits concern issues of equal pay and compensation, racial bias and cultural differences. Recent newspaper headlines have chronicled huge judgments against some of the nation’s largest employers, including Texaco, Ford Motor Company, Interstate Brands Company (Wonder Bread) and others. The Equal Employment Opportunity Commission receives complaints about discrimination based either on national origin, race or religion and those are on the rise. It appears to be inevitable that disputes will arise. Finding alternative ways to resolve them is beneficial to both parties. Here are the differences between mediators and arbitrators.

Mediation is a problem-solving process wherein a third party who is neutral to the problem assists the parties by providing a structured way to communicate and negotiate. The mediator tries to help both parties analyze their problems and generate solutions by helping them explore options.  According to Attorney John Scott of Dispute Intervention Services, “the potential result is eventual agreement on a series of steps to be initiated to solve the problems identified. The mediator acts as a guide directing the parties through the conflict that befalls them.”

At the end of a lawsuit it is rare that both parties are still speaking to each other.  However, in a mediated situation, since the goal is not only to reduce the specific conflict but also to teach the parties to understand each other more effectively, often the quality of communication can improve the relationship later on down the line. In most mediated situations both parties learn to understand each other better and communicate more effectively.

Skills of the Mediator

A mediator must be knowledgeable about conflict resolution techniques and must be proficient at using problem-solving strategies to guide the parties through the process.  Scott, who also serves on the mediation and arbitration panel of the American Arbitration Association, explained that the mediator must be aware of the dynamics between people and be able to identify when race-based or cross-cultural disputes are in evidence.  The person must be able to identify and present various options for the parties to consider, able to lay out a strategy for approaching the mediation process, and offer a reasonable timeline for resolution. Part of the goal in working with a mediator is to prevent the dispute from dragging on for months or years.  This person can be a colleague, an associate, a human resource representative or other mutually accepted person with the necessary skills.

Skills of the Arbitrator

The role of an arbitrator is similar to that of a mediator except that the arbitrator is someone in the legal profession, an attorney or often a retired judge. Once all of the information is presented, the decision of the arbitrator is final, and both parties agree to live with and abide by the decision of the arbitrator.

Either approach can be very helpful in reducing the length of time that conflicts take to resolve, and are certainly less expensive. The reduced degree of bitterness after resolution is a large positive for both parties.  The next time you think about slamming the door and saying “I’ll sue you,” consider a couple of other options first. They may serve you better and in the long run reduce the emotional upheaval of an already distressing situation.

For further information, you can contact the National Association of Mediators and the American Association of Arbitrators.



Odette Pollar is a nationally known speaker, author, and consultant. President of the management consulting firm, Smart Ways to Work based in Oakland, CA, her most recent book is Surviving Information Overload. Email to share your comments, questions and suggestions: odette@SmartWaysToWork.com. Visit us at: www.smartwaystowork.com call: 1-800-599-8463.

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