Mediation, A Process In Which Term Paper

Length: 8 pages Sources: 3 Subject: Business - Law Type: Term Paper Paper: #15408204 Related Topics: Stark Law, Litigation, Medical Malpractice, Workplace Conflict
Excerpt from Term Paper :

Hence, those people who are particularly concerned about privacy are far more comfortable with mediation as compared to litigation or arbitration for dispute resolution. Confidentiality is particularly important in settlement proceedings as people are often reluctant to reveal their "bottom line" to the opposing party; in mediation, they may reveal their bottom lines to the mediator in confidence who can use the information to settle the dispute.

Cost Reduction

Mediation is, almost always, far less expensive than other dispute resolution methods, particularly litigation. Private dispute resolution companies take up mediation cases for a fraction of the cost of bringing a lawsuit. A number of nonprofit community mediation centers in the U.S. even handle relatively minor consumer, neighborhood, workplace, and similar disputes for free or for a nominal charge. (Ibid.) The much shorter duration of most mediation proceedings (one day or less on the average) further helps in cost reduction.

Flexibility & Informality

Other important characteristic of the mediation process are its informality and flexibility. In mediation, formal rules of procedure are almost non-existent, and the process itself is highly flexible. This feature of mediation allows the parties and the mediator to control and design the process themselves. Mediation's informality also allows flexible and creative solutions for settling disputes that may not be possible in a court case where strict procedures and laws have to be followed. Moreover, the mediation process minimizes the importance of lawyers, who are sometimes so focused on winning a case that they forego an opportunity for a quick settlement. Since the parties are themselves in control of the mediation process rather than their lawyers, settlements become more likely.

Finality

In litigations, even after the case has been decided, the losing party is invariably angry at the outcome and may look for ways to violate the spirit of the judgment, if possible. By contrast, since mediation settlements are arrived at with the participation of the parties, they are more likely to follow through with the terms and conditions of the decision.

Disadvantages

Non-Binding Nature

The voluntary, non-binding nature of mediation can be a disadvantage when either party to a dispute may chose not to honor a settlement; in such a case the aggrieved...

...

("Are there some cases...")

Time and Money Lost in Unsuccessful Mediation

Although mediation takes less time than litigation, it does not stop or extend the time-limits sometimes placed on taking a case to court. Hence, if mediation is unsuccessful, the time spent on the process may at times prevent one from taking the case to court. In case of unsuccessful mediation, the parties may have wasted time and money on mediation and still face the expense of a trial. (Ibid.)

Bad Faith Cases

Mediation can also prove disadvantageous if one of the parties involved is exhibiting bad faith by hiding assets or income. Mediators who are experts at exploring the parties' needs, goals, and possible solutions, do not have the legal resources of an attorney, such as the right to subpoena documents or witnesses to dig out concealed information. In such a case, the aggrieved party would be better off with an attorney who can aggressively investigate the matter.

Passive Party

Mediation may also prove problematic if one party is very passive as compared to the other; in such a case, the passive individual is likely to be bulldozed into an unfavorable agreement by the stronger party.

Conclusion

Mediation, although not a new concept, is increasingly being used as a dispute resolution alternative to litigation. There are different types of mediation such as the 'Facilitative' and 'Transformative' mediation that differ in styles and emphasis but have common key characteristics such as neutrality of the mediator and the confidentiality of the process. It has a number of obvious advantages over other means of dispute resolution, most notably a substantially lower cost and the flexibility to be applied for settling a wide range of disputes while its disadvantages are few and of a relatively minor nature.

Works Cited

Are there some cases that should not be mediated?" NOLO: Mediation FAQs. 2006. November 27, 2006. http://www.nolo.com/article.cfm/pg/7/objectId/AEED791E-B41C-4CE5-8271983F8C9FBEEA/catId/B21C6122-6654-468C-83A6D0B4B74D37CD/104/308/239/FAQ/

Bates, John B., and Bruce A. Edwards. "Mediation: The Pursuit of Compromise." USA Today (Society for the Advancement of Education) Mar. 1994: 38+. Questia. 27 Nov. 2006 http://www.questia.com/PM.qst?a=o&d=5002202903.

Spangler, Brad. "Transformative Mediation." Beyond Intractability: University of Colorado, Boulder. October 2003. November 27, 2006. http://www.beyondintractability.org/essay/transformative_mediation/

Types of Mediation." Robert Carrow's Home Page on Mediation & Arbitration. 2006. November 27, 2006. http://www.carrow.com/MedTypes.html

Why Consider Mediation?" NOLO: Mediation. 2006. November 27, 2006. http://www.nolo.com/article.cfm/ObjectID/8AC559A6-5EAA-4565-834745CD74FC79A1/catID/B21C6122-6654-468C-83A6D0B4B74D37CD/104/308/239/ART/

There can be more than one mediator involved in some cases

The Greek word for mediate means to stand between (Bates and Edwards, 34)

President Roosevelt was awarded the Nobel Prize in 1906 for his mediation efforts in the peace agreement between Japan and Russia

It is estimated that a half-day mediation of a personal injury claim may cost each side about $500 on the average. The cost of a similar case in court may be $50,000 or more. ("Why Consider Mediation?")

Mediation

Sources Used in Documents:

Works Cited

Are there some cases that should not be mediated?" NOLO: Mediation FAQs. 2006. November 27, 2006. http://www.nolo.com/article.cfm/pg/7/objectId/AEED791E-B41C-4CE5-8271983F8C9FBEEA/catId/B21C6122-6654-468C-83A6D0B4B74D37CD/104/308/239/FAQ/

Bates, John B., and Bruce A. Edwards. "Mediation: The Pursuit of Compromise." USA Today (Society for the Advancement of Education) Mar. 1994: 38+. Questia. 27 Nov. 2006 http://www.questia.com/PM.qst?a=o&d=5002202903.

Spangler, Brad. "Transformative Mediation." Beyond Intractability: University of Colorado, Boulder. October 2003. November 27, 2006. http://www.beyondintractability.org/essay/transformative_mediation/

Types of Mediation." Robert Carrow's Home Page on Mediation & Arbitration. 2006. November 27, 2006. http://www.carrow.com/MedTypes.html


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