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The Policy does have some limitations, however, and in order for the Policy to maintain a strong foundation, arbitrators should not expand its reach into areas best left to courts of law. Unrestrained arbitration decisions based on good intentions have corrupted the Policy. By exercising a little restraint, ICANN's dispute resolution providers can still save a good policy and allow the appropriate cases to be heard by courts of law (509)."
In other words, Stewart is suggesting that going for arbitration is the quick fix, and that the quick fix absent the law as applied by those best qualified to interpret and apply the law, might perhaps result in one party not receiving the fullest benefit of the law. It is a good point, but not a point that applies to cases that are so simple in nature as is Tom and Sue's. Also, if taking a court action can impact their business in an adverse way, then it remains in the best interest of Tom and Sue in their business to resolve the problem without the benefit of a legal expertise whose qualifications are probably more than this situation needs.
Linda R. Singer refers to mediation as the "sleeping giant," because of its flexibility, which makes it fit businesses of all sizes and appropriate for dispute resolution within those varying sized businesses (70). In the case of Tom and Sue, we really do not have the details of the size of their business, but we know that their partnership consists of just the two of them, because there are no other partners involved in this dispute. Singer points out that a mediator can help the parties to move beyond their sticking point by working through those sticking points, which brings them closer to conflict resolution (70).
Sandra E. Gleason (1997) says that successful dispute resolution is often a way of organizing the partnership's priorities (70). Gleason says that questions to be resolved in dispute resolution should begin with some basic questions and answers:
What are your goals for the process (What is the mission)?
What barriers do you see in the accomplishment of your goals?
What opportunities do you foresee?
What are your interests/needs? What do you personally hope to accomplish?
What do you see as the most critical issues to be resolved in this mediation process?
What do you see as the most important issues for the group to address?
What is at stake for you personally? Why are you willing to participate in this process?
Whom do you represent? (70)"
These are a few of the questions that might prove helpful in answering to prepare for mediation. They help to identify where the real problems at stake can be recognized and quickly resolved. Certainly two people who have invested the time, finances, money, and energy in creating together a business venture are interested in preserving that business venture, and working through issues that could ostensibly bring about the end of a lucrative partnership over something so reconcilable as ego.
In making the decision to recommend mediation to Tom and Sue, the greater benefit to their business is very much the focus and consideration. This partnership does not need the negative attention that a court case and prolonged litigation can bring upon it. If dissolution of the business partnership is the goal - and that might well be the goal - then their interests are best served by mediation so that both parties can enjoy the fruits of their work and endeavors.
Gleason, Sandra E., ed. Workplace Dispute Resolution: Directions for the 21st Century. East Lansing, MI: Michigan State University Press, 1997. Questia. 16 Jan. 2009 http://www.questia.com/PM.qst?a=o&d=10430129.
Singer, Linda R. Settling Disputes Conflict Resolution in Business, Families, and the Legal System. Boulder, CO: Westview Press, 1994. Questia. 16 Jan. 2009 http://www.questia.com/PM.qst?a=o&d=85998075.
Stephens, Gene. "Future Justice: From Retribution to Reconciliation." The Futurist Sept.-Oct. 1989: 21+. Questia. 16 Jan. 2009 http://www.questia.com/PM.qst?a=o&d=5000113897.
Stewart, Ian L. "The Best Laid Plans: How Unrestrained Arbitration Decisions Have Corrupted the Uniform Domain Name Dispute Resolution Policy." Federal Communications Law Journal 53.3 (2001): 509. Questia. 16 Jan. 2009 http://www.questia.com/PM.qst?a=o&d=5001008848.[continue]
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