Question

There are 3 types of 3^rd Party Dispute Resolutions. Please list each one, briefly describe and list an advantage and a disadvantage of each.

Answer 1

1. Mediation--The goal of mediation is for a neutral third party to help disputants come to a consensus on their own.

• Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the interests underlying their positions.

Mediation can be effective at allowing parties to vent their feelings and fully explore their grievances.

Working with parties together and sometimes separately, mediators can try to help them hammer out a resolution that is sustainable, voluntary, and nonbinding.

disadvantages------Mediations are not ideal ways to get to the truth of the matter. In a courtroom setting, lawyers have many tools to get people to testify and produce evidence that are not available to mediators..

2.  Arbitration

In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute.

• The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.

The disputants can negotiate virtually any aspect of the arbitration process, including whether lawyers will be present at the time and which standards of evidence will be used.

Arbitrators hand down decisions that are usually confidential and that cannot be appealed.

Like mediation, arbitration tends to be much less expensive than litigation.

disadvantages--------Inability to Appeal. As a general and practical rule, the arbitrator’s decision cannot be appealed. Only in certain limited situations, such as when the arbitrator exceeded his or her authority or upon proof of corruption, fraud or undue influence, will an arbitrator’s decision be reviewed by a district court. This can be especially troubling given that an arbitrator generally has more discretionary and decision-making power than a judge or jury. Therefore, the binding nature of the decision and the general lack of ability to seek recourse from an incorrect decision make the consequences of the arbitration more profound.

3. Litigation-----The most familiar type of dispute resolution, civil litigation typically involves a defendant facing off against a plaintiff before either a judge or a judge and jury.

• The judge or the jury is responsible for weighing the evidence and making a ruling. The information conveyed in hearings and trials usually enters, and stays on the public record.

Lawyers typically dominate litigation, which often ends in a settlement agreement during the pretrial period of discovery and preparation.

disadvantages-----Costly
Time consuming
Parties cannot decide outcome and select judge
Does not allow for creative outcome
Adversarial
Court has no power to go beyond issues of fact in the case.