Law Assignment: Literature Review OnMediation As An Alternative Disputes Resolution System
Task: Write a law assignment presenting a detailed literature review on “Mediation as an Alternative Disputes Resolution System – An Analytical Study”.
Understanding the Concept of Mediation
Gore (2021) understood the concept of mediation based on the definition put forward by the Black Law Dictionary. As noted in this law assignment, it states that mediation acts as an effective method for the resolution of disputes which are nonbinding in nature. In mediation, the dictionary states that a neutral third-party tends to exist that endeavors in assisting the parties involved in the dispute to arrive at a mutually agreed solution. .
Process for carrying out mediation
The Program on Negotiation (PON) brought forward by Harvard Law School during 2021 highlights six main steps that are needed to be undertaken for carrying out the process of mediation .
Before the commencement of mediation, PON (2021) reflects that the mediator requires the parties to decide on their meeting point and the ones present for carrying out the negotiation. Herein, Golann and Folberg (2021) reflect that the parties involved in the mediation process are required to bring lawyers, colleagues, and, if needed, family members also for settle the disputes .
Introduction of the Mediator
As stated by PON (2021), the mediator focuses on introducing the participants, outlines the process of mediation, determines the goals of mediation, and lays out different ground rules.
Putting Opening Remarks
PON (2021), in this stage, outlines that each side is given an opportunity of presenting their view regarding the dispute. Garcia (2019), herein, opines that the parties are also allowed by the mediator for venting their feelings out .
Carrying out Joint Discussion
After having put Opening Remarks, PON (2021) observes that both the disputed parties and the mediator initiate the interrogation process for gaining an effective understanding of their mutual concerns and needs.
Herein, PON (2021) reflects that in cases where emotions start running high between the disputed parties, the mediator can focus on taking the two separate parties in separate rooms for carrying out private meetings. The private meetings are called Caucuses, wherein the information gained is kept confidential.
Finally, during the Negotiation phase, PON (2021) notes that ideas and proposals are started on being formulated for meeting the mutual needs of both parties. Negotiation can be carried out, by the negotiator, within the same room or based on the mode of 'Shuttle Diplomacy.
Factors facilitating mediation
Reflecting on the factors that contribute to facilitating the Mediation process, Law Society Gazette of Ireland (2019) put forward several different parameters highlighted as under.
The Law Society Gazette of Ireland (2019) indicates that this appetite crops up based on countering a deficiency in arranging funds for fighting the case or prosecuting needed evidence to defend the claim. Again, Risk Analysis is also identified to create an appetite for mediation. .
Congestion in Courts
Factors like facing congestion in the courts and the costs incurred for litigation purposes, whether financial or reputational, are identified by the Law Society Gazette of Ireland (2019) for parties resorting to mediation.
Problems when dealing with Public Sector
It is observed by the Law Society Gazette of Ireland (2019) that owing to problems countered, regard to dealing with public sector-based clients, litigants tend to resort to the process of mediation. Moreover, public procurement tends to create difficulty regarding the suite of different types of mediation options like discounted claims, credit notes, and emerging contractual terms.
Problems of being Unheard
Poor communication is identified by the Law Society Gazette of Ireland (2019) as a potential problem that leads to industrial problems. In cases where complaints are made to larger institutions, people find it difficult to make the same rightly heard of. The main reason behind this is as accounted by OECD (2021) is that the complaints are outsourced to a call center for being addressed. . It is evident by a statistic presented by the Law Society Gazette of Ireland (2019) that in 80 percent of the cases, complaints made to smaller organizations, comprising of fifty employees, were effectively heard compared to those being made to more giant corporations.
Practice of Shuttle Mediation
Another important factor indicated by the Law Society Gazette of Ireland (2019) that increased the growth of resorting to the mediation process is the practice of Shuttle Mediation or Telephone-based mediation. It is evident by a statistic presented by the Law Society Gazette of Ireland (2019) that taking resort to shuttle mediation has helped in shooting the number of mediation cases from 8 in 2014 to 70 in 2015 and around 2300 and 2400 during 2017 and 2018 respectively.
Feeling of Weakness
As observed by the Law Society Gazette of Ireland (2019), the feeling of weakness accounts to be a significant problem that deters the people and the institutions from taking a resort to mediation. The parties at a dispute tend to deter from entering into mediation in that they believe that by doing such, they become bound to listen to the other party. Thus, some perceive entering into mediation as admitting the sense of being guilty or weak. .
Strengths and Weaknesses of the Mediation Process
In an article rendered by the National Paralegal College in 2021, the strengths and weaknesses of the mediation process is detailed as under.
Strengths of the Mediation Process
The article presented by National Paralegal College (2021) states that the mediation process is evaluated to be comparatively inexpensive and swift compared to other types of legal procedures. Further, the mediation process is simplistic in that it is not built up of a complex set of guidelines. Again, as observed by the National Paralegal College (2021), mediation earns strength owing to the needed flexibility wherein the disputed parties gain the scope of revisiting and modifying the objectives for dispute resolution. The settlements made through mediation are mutually agreeable and thus are largely accepted. .
Weakness of the Mediation Process
Despite the above-stated strengths, the article rendered by the National Paralegal College (2021) reflects on some potential challenges associated with the mediation process. Mediation is accused of bearing limitations regarding the generation of settled agreements and lacks formal frameworks guided by constitutionally supported procedures.
1.Nandini Gore, Handbook on Mediation (1st published 2 February 2021, OrangeBooks Publication 2021) 4
2.PON, ‘Understand the 6 steps necessary in the mediation process’ (Harvard Law School, 16 August 2021)
3.DwightGolann, Jay Folberg, Mediation (1st published May 2006, Wolters Kluwer 2021) 253
4.Angela Cora Garcia, How Mediation Works (1st published 29 July 2019, Cambridge University Press 2019) 89 5.Law Society Gazette of Ireland, ‘The 4 factors that can facilitate mediation’ (Law Society of Ireland, 2019)
6. OECD, The Governance of Regulators Driving Performance at Portugal’s Energy Services Regulatory Authority (1st published 5th May 2021, OECD Publishing 2021) 95
7.AlainLempereur, Jacques Salzer, Aurelien Colson and Michele Pekar, Mediation (1st published 31st March 2021, Wiley 2021) 66
8.National Paralegal College, ‘Advantages and Disadvantages of Mediation (Law Shelf, 2021)
Garcia, A.C., How Mediation Works (Cambridge University Press, 2019).
Golann, D. & Folberg, J. Mediation (Wolters Kluwer, 2021).
Gore, N., Handbook on Mediation (OrangeBooks Publication, 2021).
Law Society Gazette of Ireland, 'The 4 factors that can facilitate mediation' (Law Society of Ireland, 2019)
National Paralegal College, 'Advantages and Disadvantages of Mediation (Law Shelf, 2021)
PON , 'The Mediation Process and Dispute Resolution' (Harvard Law School, 2021)