Lawyers expensive and time consuming. Lawyers using a

Lawyers want to
solve cases efficiently and effectively. Some forms of trying a case,
litigation for example, is usually avoided. Litigation is expensive and time
consuming. Lawyers using a cost-benefit analysis will trying to maximize their
time while minimizing the cost, any chance that they can. The development of
alternative dispute resolutions has given lawyers other options besides
litigation to resolve legal disputes. This essay will focus on the alternative
dispute resolutions of mediation and arbitration. In addition to these two, there
are many others such as negotiation and settlement, private trials, minitrials,
summary jury trials, early neutral case evaluation, and court-annexed
alternative dispute resolution (Kubasek, p.76).

“Mediation is a
process in which two disputants select a party, usually one with expertise in
the disputed area to help the disputants reconcile their difference” (Kubasek,
p.78). There are several positives to mediation. The mediator that is selected does
not make a final decision, they are there to simple facilitate, which enables
the two disputants to listen and understand each other’s arguments so that they
can come to a “fair, equitable” and “based upon sufficient information”
agreement. If an agreement is reached, the two disputants will decide to create
a contract. This enables the parties to produce a detailed contract in which
both sides can benefit from. On the other hand, if an agreement is not reached,
then it will be taken to court; however, anything said in the mediation will
not and cannot be used it court because it is confidential. This may be an
advantage or a disadvantage depending on the perspective of each party. Another
pro to mediation is that whether it is performed by itself or also with
arbitration, the cost will still be less than litigation, as well as less time
consuming. Preservation of relationships between the parties are more likely
through mediation than if the dispute was brought to trial or if another
alternative dispute resolution was used. Mediation also decreases the hostility
between the two disputants and gives the parties the ability to find and
implement creative solutions which can be beneficial for both parties.

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There are
disadvantages to mediation as well. Since settlements are never made public, it
is hard to measure the real success rate of this type of alternative dispute resolution.
Some argue that the informal nature of mediation represses and denies certain
incompatible structural conflicts, such as a strife between labor and
management. Other says that it is an informal process that creates the
impression of equality between the disputants when no equality exists. “The resultant
compromise between unequals is an unequal compromise” (Kubasek, p.80). Finally,
the process can be abused, someone may enter mediation in bad faith meaning
that they will do anything in their power to drag the process out as long as
possible, making it difficult to come to a clear-cut decision. If such process
is dragged out then it could become as costly as a trial. Some who see that the
disadvantages of mediation outweigh the advantages, will decide to utilize
arbitration instead.

“Arbitration is
the resolution of a dispute by a neutral third party outside of the judicial
setting” (Kubasek, p.80). Just like mediation, arbitration also has advantages.
The two disputants must agree on who is the arbitrator, which is to help
eliminate any bias that may occur during the process. The dispute is solved
faster and cheaper than litigation, comparable to mediation. Legal counsel is
not required which may also cut down the cost of the resolution even more.
These last two advantages could also be disadvantages and will be addressed
later. Arbitration is considered a private procedure since “no official record
of the arbitration hearing is made” (Kubasek, p. 81). No official record
essentially means that the decision is not made public. This advantage can help
with companies’ reputations as well as their stances in the stock market. Lastly,
if the arbitration is binding, it is difficult to appeal since the decision or
award is finalized.

There are several
disadvantages of arbitration. If the arbitration is binding, the right of
appeal is no longer an option, which means that either party will not be able
to correct any decision that they are against once the dispute is resolved.
Even though arbitration is cheaper, the arbitrator may feel the need to
increase the cost if the dispute is complicated. Arbitrators tend to lack
expertise in discrimination matters. Some think that the process of arbitration
erodes workers’ rights because it gives up the right to a public trial which
provides the ability to get an injunction to stop unlawful practices and the
right to bring a class action suit. It is also possible that if everyone
continues to use arbitration to resolve disputes, arbitration will start to
become more and more like litigation. Within arbitration exists an absence of
written opinions; therefore, legal precedents cannot develop to reflect
changing circumstances making the standards used by arbitrators unclear. An
argument against the use of arbitration is that the public interest can be
harmed by allowing a company or industry to use arbitration to “hide” disputes
from the public since a record is not required.

Disadvantages of
both occur as well. Even though the two parties need to agree on who is
arbitrator or mediator, there is no way to ensure that a dispute resolution
firm can be truly unbiased (Kubasek, p. 98). Mediation and arbitration forces
disputants to give up their right to a fair trial, especially when the award
from a jury will be much higher than the award from an arbitrator. People may find
themselves stuck or trapped using arbitration to resolve disputes because it
was in clause or contract that they failed to read. Despite all the
disadvantages of these two dispute resolutions, clients and lawyers result to alternative
dispute resolutions because the advantages outweigh the options of going through
a costly, time consuming trial where the disputants are unable to choose who is
hearing the case.  


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