Meaning of mediation /Conciliation

The history of mediation only begins to define what it is. Many questions about mediation are answered by understanding what mediation is and what it is not. The practice falls along a spectrum that defies a strict definition. The specifics of mediation depend on what is being mediated, the parties in a dispute, who is doing the mediating and the setting in which mediation is offered.

Mediation / conciliation is an alternative to violence, self –help or litigation that differs from the process of counseling, negotiation, and arbitration. It can be defined as the processes by which the participants, together with the assistance of neutral person or persons, systematically isolate disputed issues in order to develop optional alternatives and reach a consensual settlement that will accommodate their needs. Mediation/conciliation is a process that emphasizes the participants’ own responsibility for making decisions that affects their lives. It is therefore a self-empowering process. Thus , it is purely different from negotiation so long as there exist a third party involvement.

The more useful way of looking at mediation / conciliation is to see it as a goal –directed, problem –solving intervention. It is intended to resolve disputes and reduce conflict as well as provide a forum for decision making. Even if all elements of the dispute may not be resolved, the underlying conflict can be understood by the participants and reduced to manageable level.

Though some people mention the difference in meaning between mediation and conciliation, others unlike argue that both words are to mean the same thing. And the argument which supports the interchangeability of the two words prevails. In both procedures a successful completion of the proceedings results in a mutually agreed settlement of disputes between the parties though, in some jurisdiction, mediation is treated as distinct from conciliation in as much as in mediation the emphasis is the more positive role of the neutral third party than conciliation. Still others say that conciliation is “non-binding arbitration” whereas mediation is merely “assisted negotiation.”  As already said, these factors where the role that the neutral third party can play depend on the nature of the disputes, the degree of the willingness of the parties and the skill of the individual neutral. In this teaching material mediation and conciliation are as synonymous. In Ethiopia the word conciliation is used.

Features of Mediation /Conciliation

Mediation, differ from arbitration where the outsider decides for the parties (their behalf) how the matter is to be resolved. Although a mediator may recommend or try to influence a party, he or she has no comparable decision making powers and practical or legal ability to compel any party to do or refrain from doing anything. This is to mean that mediation is not binding.

Practical purpose of mediation is settlement. To facilitate the settlement, parties normally insert “without prejudice clause” in their discussion. A “without prejudice” process does not alter a party‘s legal right.  No admission or inferences are drawn from the fact of participation. A” without prejudice “communication is a protected one that shelters under the confide settlement attempts and cannot latter be used to harm the communicator. Admissions against interests made during the course of without prejudice discussions are not be used against the admitting party to its detriment, such as to prove facts or issues in a law suit.

Mediation could be annexed to the court system, so as to become a judgment of the court if the agreement is reached. The parties may define the issues to be settled by themselves or the mediator may assist them in this regard. The extent to which the mediator interferes in the negotiation process can  vary widely , on a continuum ranging from mere as chairperson , to very structured process in which the mediator go so far as to suggest settlements to the parties.

Perceived advantages of mediation

When used in the contested of ongoing relationships, mediation allows underlying issues and emotion to be addressed and resolved, and so allows the relationship to be continued in the future. Thus, mediation is commonly used in the area of family law. As the decision is reached by the parties to the dispute instead of being imposed on them, there is a great satisfaction with the dispute resolution process and outcome, and consequently, greater compliance with the result. The process is less confrontational than adjudication and so reduces the likely hood of win or loss mentality and provides a frame work for the future dispute between the parties. As opposed to adjudication, mediation process is faster, cheaper and less formalized, both in terms of process and in tailoring results. This increased flexibility allows the needs of particular parties to be addressed.

Perceived disadvantages of mediation

As of the perceived advantages, there are also short comings of mediation: it is inappropriate where parties to a dispute are at an imbalance of power, or where there is a history of physical violence, as one intimidate the other; it also increase cost if mediation fails and arbitration follows; unrepresented party by a lawyer may be disadvantaged than the presented one. It is also questionable whether the perceived advantages of mediation are possible if the process is involuntary. There are concerns regarding the ability and qualification of mediators, and whether they should be subject to professional standards. Finally, the use of mediator as alternative to court adjudication may result in second class justice for low –income and disadvantaged peoples.

Mediation proceedings and the roles of mediator(s)

Mediation involves an impartial, independent third party, mediator, helping disputing parties to reach a voluntary, mutually agreed solution. The disputant, not the mediator decides the terms of the agreement. The only function of mediator is to assist the disputants to over come any obstacles during their negotiation, to determine the dispute in the hope that disputants and mediator will develop creative solutions that satisfy their interest.

To achieve this purpose there are various stages in mediation with their own characteristics which demand different skills of arbitrator. Writers divided these steps in to different stages: some of them make the steps ten and others make it seven. Here under you will see various stages of mediation (mediation proceeding) and the function of mediator in each stage.

A) Introduction and setting frame work

The mediator is responsible for the condition which prevails at the mediation. After the mediator welcome the disputing parties, he will explain the process and his/her approach to the disputants and try to make them at ease with the process.  The mediator at this stage should inform the disputants that he his impartial and neutral. Further more, apart fro his impartiality and neutrality, he should tell the parties that he does not have the role of judge or arbitrator since he is there just to facilitate the negotiation process between the parties. At the same time mediator set ground rules /rules of courtesy and introduces the same to the disputants so as to attain full cooperation of parties to listening each other, to be open for the persuasion and to have a forward looking to avoid their difference through smooth dialogue.

The rules of courtesy may include the following contents and others depending on the nature of dispute or issues involved thereof.

1)      Disputants should respect the view of the other party.

2)      Disputants can leave the mediation at any time and they will not be coerced in the solution.

3)      Mediation could be taken place with the presence of mediator and parties in the same ceiling or private meeting with the mediator.

4)      Information discussed in mediation is confidential:  issues revealed during mediation process remain secret.

5)      A mediator cannot be called as a witness at the future proceedings and that the mediator notes cannot be cited.

B) Statement taking

After the ground rules have been set and accepted by the parties, each party in a dispute explains the dispute from his perspectives. Depending on the case or the emotion of the parties involved, the process may or may not take longer period. At this juncture, the mediator makes sure that   there is no interruption while one of the parties expresses his feeling. In addition he would take note concerning the interest of disputing parties and the preliminary ideas for settlement. In this regard, for instance, Art. 3320 Civil Code of Ethiopia imposes duty upon conciliator (mediator) to ensure that parties in mediation process express their view. Other important functions of mediator at this stage of proceeding is summarizing and checking the accuracy of the arguments of parties.

C) List /agenda construction

This stage is for the mediator to conduct open sessions to ask the disputants questions, to clarify perceptions and underlying interests. Parties suggest topics, agree on the list of the issues, and agree on the priority of agenda to be discussed. While the parties forward their opinion on the matter, there might be words which offend the other party and the mediator need to substitute these words with positive language. Generally the mediator here attempts to identify agreed upon facts and issues.

D) Exploration

Following determination of the agendum, parties will discuss the lists. The mediator here encourages parties to talk each other directly as far as the dispute or the issue is their. The mediator directs parties move from blame to understand each other‘s position. At the point where parties face difficult items, mediator assists them on resolving the issue.

E) Separate meeting(caucuses)

A separate meeting (caucuses) is one of the techniques used by the mediator in conducting the meditation process. At the open session of mediator and disputants, real intention and interest of the latter may not be revealed and to get the real intention of parties mediator can arrange separate meeting with each of the disputants. Such meetings are an opportunity for the mediator and each party to explore frankly and in confidence the issue in the case and option for settlement. The benefits of having caucuses by neutral party include;

1. It enables mediator to build closer relationship with parties
2. It avoids firm position of disputing parties that they hold as the time of joint session.
3. Allow for deeper and sustainable discussion on the issue without argument or interruption

 

F) Option generation, negotiation

There are several ways of generating options. These ways include: writing, interview, survey, bench marking and brain storming session. One of the main ways to generate option is brain storming. It is conducted by out lining the aims of the session by mediator. It is conducted to identify problems to generate feasible ideas as a solution to the problem identified by drawing on people’s own experience and to the problems, and to help the participants to develop a new skill that they could use themselves in the future.

After generating all possible ideas or options, it is useful for an efficient brainstorming that the facilitator looks for common theme or categories and grouping the problems and ideas.

1. Selecting an option

At this stage of mediation process, the mediator will allow the disputants to assess the options generated and comment on options that may be feasible or that may be impractical. The mediator may afford objective criteria or bench marks to help disputants in choosing a best option and the ones which is conceived as fair by both parties.  Mediation would be much more effective if the participants do have standards by which they rely on   their proposed solution for amicable solution. The criteria may include market value, depreciation cost, etc.

1. Closure

As discussed in the previous sub-sections parties in a dispute often put the BATNA while they negotiate to end their dispute amicably. Based on the BATNA they evaluate the proposed solution suggested by the other party and accept the proposal if it is better than their BATNA. If the disputants reach an agreement, they can put their agreement in writing. The parties can then determine with the assistance of the mediator, what steps they need to take to implement the agreement. Such as when, where and how the agreement has to implement will be determined.

If there is no agreement, the mediator   can assist the disputants to determine whether there are any issues that they can agree on.

The roles of lawyers in mediation

Lawyers may assume different participatory roles in mediation. A lawyer may represent his client and negotiate on his behalf. In case of court annexed mediation particularly, clients would favour if their lawyers involved in that process.

Lawyers would enable their clients to assess litigation consequences if the latter take their dispute to courts, and also disputants would get sufficient information about the working atmosphere in court.

Lawyers should be able to inform disputants of the relevant law and suggest possible court out come. However, the extent of his help should be limited to general information, to the extent of defining the legal issues.  Lawyers should not serve as legal advisors or should not direct the decision of the clients in line with their interpretation of the law as applied to the fact of the situation. Even after agreement of disputing parties is reached, lawyers can play great role to draft the agreement of their clients through mediation process.

Indeed, there are various arguments about the appropriate roles of lawyers who serve as mediators. The first line of argument is the one which equates mediation with presentation and raises ethical values that prohibits the practice of attorney mediation. Second argument on the opposite supports the role of lawyer as mediator in carefully prescribed conditions.

Legal effects of mediated agreement

The purpose of mediation is to enable the parties to arrive at a mutually acceptable resolution of the dispute in a cooperative and informal manner.  If the matter is settled at mediation, the mediation agreement, as observed from practice and contents of laws on this regard, is considered to be a contract and is enforced under the general principle of contract law. The Ethiopian law, for instance, has the similar position. Art. 3320 of the civil code requires conciliator to draw up the terms of compromise when the parties settled their dispute amicably, i.e. through mediation.  Art. 3307 C.C also defined compromise as one forms of contract. The provision reads as “A compromise is a contract whereby the parties, through mutual concession, terminate an existing dispute or prevent a dispute arising in the future.”   If one of parties in their compromise renounced all of his rights, actions and claims, he will lose such rights, actions and claims  for good. We can also understand from art.1731 of the C.C that contractual agreement is a law between contracting parties and parties are duty bound to respect their promise.

Settlement is the primary way people adjust dispute, alter ownership, and rearrange their relationships. Because we reach settlements by negotiating, bargaining pervades personal, commercial, social and political life.

Even though some writers try to distinguish negotiation from bargaining, in popular usage the terms are interchangeable. Hence, the terms are used interchangeably in this material and as defined here, negotiating or` bargaining’, as to Chorniki, means “the method by which two or more parties communicate in an effort to agree to change or refrain from changing: their relationship with each other; their relationship with others; their relationship with respect to an object or object. “

Negotiation can also be defined as: a non-binding procedure involving direct interaction of the disputing parties where in a party approaches the other with the offer of a negotiated settlement based on an objective assessment of each other’s position.

Primary Consideration of Negotiation

Selection is at the heart of ADR use. Whether your client or yourself are making an ad-hoc decision to use ADR for current controversy or are designing a systematic ADR program, it is vital to make appropriate choice for appropriate case. It is blunt fact that the one who makes the choice has to know the features of each ADR mechanisms. Here under are some primary concepts of negotiation.

When is negotiation appropriate Dispute resolution?

Selection is a challenging in ADR. Confusion about what choice to make is one reason that ADR sometimes generates resistance. According to Chorniki, there are criteria either to use one type of ADR or not. As to him negotiation remedy is appropriate when:

1)      Collaboration among parties is probable with respect to subject –matter of the dispute.

2)      Collaboration among parties is probable with respect to the process ;

3)      There is  no desire or need to resolve contested evidence ;

4)      There is no desire or need to resolve contested legal issues;

5)      There are some concerns about the cost and negative consequences of failing to achieve out come –cost may relate to relationships , reputation ,probable damage awards , transaction or opportunity costs;

6)      The parties are able to and willing to make responsibility for the out come ( since negotiation is highly participatory)

7)      There is no need for involvement from an outsider because the necessary skills and wisdom ( to manage the discussion to analyze the conflict etc.) reside with the parties ; and

8)      There are no public interest concerns that would demand public attention and scrutiny.

The above measurements are best ways of identifying the situations when negotiation would be preferred dispute resolution mechanism.

Nature of bargaining power

The other crucial factor in negotiation and the negotiator need to know is the nature of bargaining power as no negotiation without bargaining power.

In general terms, power is the capacity to exert influence .It is the ability of a person or a group to cause change,” to overcome resistance in achieving desired objectives or results.” It is also defined as the probability that one actor within a social relationship will be in a position to impose his will despite resistance. Implemented in negotiating relationship, bargaining power is party’s capacity   in influencing  the out- comes of negotiation towards its own goals.  Chamberlain explained, therefore, that bargaining power is the ability to secure another agreement on one’s own terms.

Bargaining power must exist for there be bargaining. If one party has no power over the other, there is no bargaining relationship. Rather, either it is relationship involving a different type of power such as hierarchical power or a relationship equal with common goals seeking to discover through discussion the means for maximum achievement of those goals. Essential elements of bargaining are lacking in situations in which one party has total control over the other. For instance, master-slaves, or lord serf relationships are not bargaining relationships if the slave or serf is totally devoid of power to affect the interest of the lord or master. In contrast, where the parties have something to exchange and have alternative to submitting to the other’s will, they have bargaining power.

When we speak of ‘Bargaining power’, we must also remember that, as others have noted, it is not an attribute that exists by itself. It is not a quantity that an individual can own, hoard or stockpile for future use against any other party. Bargaining power does not exist independently of bargaining relationship with a particular party or parties and with respect to particular or potential transaction.

The cost benefit model helps to understand the nature of bargaining power that analyzes the elements of bargaining power shows the relationship among those elements and reveals the dynamics of their transactions.

Element affecting of bargaining power;

Perception (P), offers to meet the other’s  needs (OMON) ,Best Alternative to proposed  agreement (BAPA) , Accrued cost (AC) , cost of impending negotiation (COIN), probability of performance , and  Predictive accuracy (PA) ,  among other things are factors which affects bargaining power as illustrated by Goldman and Rojot in their book. Here are the excerpts taken from their book to show these elements.

A) Perception (p). One of the elements of bargaining power is perception. Much of what we believe is based on inadequate or inaccurate data. Yet, those short comings rarely detract from our confidence in those beliefs. Every skilled negotiator understands that what counts in bargaining is not the reality; what counts are the parties’ perceptions of reality. The element of bargaing power exists only to the extent that they are perceived as existing in the minds of the transaction participants. The situation, the environment and the context may contain abundant resources and formidable opportunities to build up the bargaining power of one or both parties.  However, if parties are not aware of these opportunities or neglect them, they are unlikely to affect the bargaining out come.

Thus, a significant factor in developing bargaining power requires:

1) Bring your perception in line with the reality;

2) Ascertaining the other side’s perceptions of the proposed transaction and available alternatives and

3) Finding ways to favorably alter the other side’s perception.

Perception, therefore, is an element that has direct impact upon all other elements of bargaining power.

When negotiating, each party’s bargaining power is based on his opponent’s perception of the cost of agreeing and the cost of disagreeing with other’s proposals. Therefore, in large measure our bargaining power is a function of the way the bargaining situation is perceived by our opponent not by ourselves. Accordingly parties aiming at increasing their own bargaining power must influence the other side’s perception.

B) Offer to Meet the others needs (OMON)

People enter negotiation to achieve particular objectives. Bargaining objectives can be analyzed as a range between two salient points which constitute the limits of the parties’ objectives; an ideal goal and a resistance point. That is the most preferred result (the goal) and the least acceptable result (the resistant point.)  In negotiation each party is looking to obtain something from the other side that he does not think he can obtain more easily in some other manner.

A party will stay in negotiating relationship given what the other party expects of him and settle on the other’s terms if he wants badly enough what other party has to offer. The more one side depends on other to satisfy his needs, the more he will be inclined to settle on the terms proposed by the other side. Thus, a core element of bargaining power is the offer to meet the other’s needs. The perceived needs of negotiating parties are related to each other in one of four ways. They may be perceived to be: common, compatible, conflicting or incompatible. Common needs exist when opposing parties stand to mutually benefit from a particular resolution or facet of the resolution of the conflict. Compatible needs are found when one side , though not gaining any particular benefit for itself , can accommodate the other’s special need with out scarifying any thing that it needs.  Needs conflict when one side’s gain is the other side’s loss , with respect to particular need. A negotiated resolution represents only a partial accommodation of this aspect of each side’s needs.  Incompatible needs are involved in a transaction if one side’s needs could be met only at the expense of not meeting some need of the other side. For example , if A’s packing machines are designed to package parts in sets of 10 but B’s manufacturing process uses 12 of these parts at a time , then  the contractual terms respecting the packaging of shipments involves incompatible needs.

When a negotiation involves only common or compatible needs it can be called an integrative or problem solving transaction. In many negotiating situations the parties’ needs are wholly conflicting or incompatible. If this is the case, the bargaining is distributive. In purely distributive situation, sometimes called an exchange transaction, each side has the ability to accommodate some or all of the other’s needs but only by failing to meet part or all of its own needs.

C) Best Alternative to the proposed Agreement (BAPA)

Sound guidance for effective negotiating of integrative (problem solving)  transaction is identifying the best alternative to searching a settlement  agreement known as best alternative to negotiating agreement(BATNA).  The Authors of the book entitled ‘Negotiation: theory and practice’ uses another phrase, Best Alternative to Proposed Agreement (BAPA). According to these author’s the phrase, Best Alternative to negotiated Agreement is misleading to the extent that it indicates that the negotiator’s bargaining power depends only on available alternative form of conflict resolution (that is, something other than a negotiated agreement). Often, however, the best alternative for a negotiator is to reach a negotiated agreement with some other party –for example, one who perceives his or her needs in a way that more compatible with the moving party’s to satisfy those needs. Otherwise, the best alternative may be to seek other conflict resolution methods for accomplishing one’s goals. As to the scholars on negotiation, a skilled negotiator should be innovative as well as rigorous in exploring what is best alternative as to the proposed agreement.

D) Accrued cost

Whether successful or not, bargaining has its costs. These costs always include time and effort, and often include out of pocket expenditure for research, personal, consultants, presentation materials, telecommunications, and the like. Research shows that typically the more people invest in project, the more willing to put their money on it. It follows that the more that is invested in a conflict resolution transaction, the greater will be the desire to resolve the conflict through that transactions rather than incur a whole new set of transaction costs in different efforts that might not produce a more favourable result. Indeed, at some point the budget resources available for the transaction might preclude opening negotiating with others.

E) Costs of impending negotiation (COIN)

The greater the cost a negotiator expects will be required to continue the negotiations, the greater is the bargainer’s motivation to abandons that transaction and seeks the best alternative to the proposed agreement (BAPA).

F) Probability of performance (POP)

Another element affecting negotiating power is each side’s perception of the likelihood that the opponents will in fact do what it promises. That is, each side’s perception of other’s offer to meet its needs is discounted by the extent to which it anticipates that in fact the other may fail to do what it promises. Another way to put this is that the perceived probability of other’s performance alters the net value placed in the other side’s offer to meet one’s needs (OMON).

g) Predictive Accuracy

One lesson taught by the concept of bounded rationality is that  one can rarely  assess with 100 percent reliability the true net either of what is proposed or the alternatives to that proposal. Unforeseeable events, lapses in logical analysis, and gaps and mistaken information, all detract from the predictive Accuracy (PA) of the BAPA or COIN. Therefore, in weighing whether to turn to the alternative to the proposed agreement, a negotiation should discount the attractiveness of that alternative to the extent that he or she has a high or low level of confidence in the accuracy with which that alternative has been assessed. And, not surprisingly, research confirms that greater the uncertainty respecting the value of the alternatives to the proposed bargaining proposal, the greater is the prospect that a negotiator will accept a proposed settlement.

Perceived advantages of negotiation

One special attribute of negotiation as a method of resolving difference is flexibility, both with regard to the manner in which the parties proceed and with respect to the ultimate accommodation reached. It allows difference to be adjusted in a way that either maximum mutual gains or meets at least some needs of all parties to settlement. A third attribute is that it implicitly recognizes the dignity and worth of all participants since negotiated resolution requires the parties assent. Finally, unlike some other methods of resolving difference, negotiation takes in to account unofficial as well as official values –that is, it can reflect values that are important to the parties even though these values not have legal status.

Perceived disadvantages of negotiations

The following points might be taken as the disadvantages of negotiation. Firstly, as negotiation is all about bargaining, the parties have no assurance that they will reach a settlement. Nevertheless, the process requires an investment of time, effort, and often other expenses. Secondly, the soundness of the resolution may be impaired if the parties miss present their goal or the back ground information or if, after agreement is reached, circumstances change from what one or more parties anticipated during bargaining. Thirdly, sometimes negotiated settlement does not satisfy community mores or relevant and lawful interest of third parties and thus, may be unenforceable or subject to one or more participants to criminal penalties. Accordingly, it is not always the most desirable means of resolving conflict.

Legal effects of negotiation agreement

Negotiation settlement is a daily practice in any society. After back and forth communication between disputing parties on their disagreement, they will reach an agreement and their agreement also has legal effect provided that parties respect what the law prescribed as requirements. The law not only imposes limits that shape both the procedure and substance of negotiation, but also its effects among the negotiating parties. In some situations the law prohibits negotiated settlement. The most obvious example is where the agreement requires one or more parties to engage in unlawful conduct such as a non complete agreement or other agreement which might constitute a restraint of trade.

If the parties conclude negotiation in line with the law, this agreement will have effect on the agreed parties. Currently, the general policy of the law favors negotiated settlement of current and future disputes for the obvious benefit that which settlement brings- less litigation and cost in terms of time and money for the parties and the courts. Settlement agreement is, therefore, considered as contracts between negotiating parties.

In general, terms of agreement lawfully concluded by the negotiating parties shall be binding on them as though they were law. This is to mean that though the requirements for valid negotiation agreement differ from country to country, an agreement which is established with the free consent of the parties in dispute and as to the specific requirement specified by the   law at hand, the agreement will be binding upon the parties.

Types of ADR list cannot be exhaustive or final as there are various dispute resolution mechanisms other than court litigation and it is still evolving.

The types of Alternative Dispute Resolution, however, can be categorized in to three categories based on the procedures we follow in each dispute resolution mechanisms. These categories are formed by considering the kind of work product resulting from ADR and how the parties participate. The categories of ADR procedures are agreement, decision and advice.

Procedure of agreement- negotiation, mediation, facilitation and mini-trials are all procedures of agreement. The work product or result from these procedures is based on the agreement of those who take part. If there is no agreement, there is no outcome. Participants in ADR process of agreement are actively involved in working together to create an outcome that is superior to any outcome that they could individually create. Specific procedures of agreement includes; negotiation, mediation, facilitation, partnering and mini-trial.

Procedure of decision –Arbitration is dominant procedure of decision.  The work product or result from this procedure is based on the decision of an outsider about how the dispute is to be resolved. The outsider’s job is specifically to render that decision. Participants in this process may be collaboratively involved to design the process or to ensure its efficiency. However, when it comes to taking in the ultimate decision process, the participants’ roles are not collaborative but competitive and limited to putting forward facts and argument.

Procedure of Advice –neutral case evaluation or early neutral evaluation , non-binding arbitration , fact finding or investigation , and expert opinion are all procedures of advice; the work product or result from these procedures is intended to inform or advice the participants .

Apart from the above general classifications of ADR methods the following  methods are widely known mechanisms in the spectrum. These are:

A) Self-help- Disputants may take matters in to their hands and attempt to resolve the situation themselves when they convince themselves that there is no other appropriate method to resolve it. This could involve physical confrontation or a strike.

B) Partnering -This is a conflict prevention mechanism rather than a remedial process.  It is typically encountered in construction industry. In construction project the contractor, sub-contractor, architect, and other stake holders, agree that construction project will not stop during dispute resolution, regardless of the methods of dispute resolution they choose.

C) Hilo- Arbitration-Here the parties agree, before arbitration, on the minimum and maximum award. The arbitrators’ award must fall within these figures or it will be adjusted to fall within the figures. Arbitrator may or may not know the limits, before he render the award.

D) Mini-trial-It is fact finding form of ADR. It involves conducting a trial –like hearing in advance of actual trial , usually in informal setting with a private presiding officer , privately retained ‘Jurors ‘ and someone role-playing the representative for the other side.

E) Early neutral evaluation-Where an independent third party evaluates the claims made by each side and issues an opinion –either on the likely outcome or on a particular point of law.

F) Ombudsmen-Are impartial referees who adjudicate on complaints about public and private organization. Generally ombudsmen serve as a last resort when complaints cannot be or are not resolved through the internal complaints procedure of the organization complained about.

G) Arb-Med –a sequence in which the parties first submit their case to arbitration . In this approach, the arbitrator makes and seals the arbitration decision before under taking mediatory efforts or before turning the dispute over to another impartial person who will mediate. If mediation fails, the parties will be bound by the then revealed arbitration award. The purported relative strengths and weakness of their case played out in the arbitration stage of the procedure, the parties will have a more realistic understanding of what would constitute a reasonable accommodation positions. Accordingly, they should be better able to reach a mediated settlement. That is why it is called Arb-Med .

H) MED-ARB- refers to the situation in which, by agreement or by law, negotiating parties submit to the intervention of mediation which will be followed by arbitration if an agreement is not reached. If parties do not reach a negotiated resolution of their difference, the issues can be submitted to arbitration for an imposed resolution. The assumption is that this will force each side to present a reasonable, attractive last offer – one that will be more attractive to arbitrator and, for that same reason, will be more likely to gain the other side’s acceptance.

I) Negotiation - is a consensual bargaining process in which parties attempt to reach agreement on a disputed or potentially disputed matter.

J) Mediation –is a method of non-binding dispute resolution mechanism involving a neutral third party who tries to help the disputing parties reach agreeable solution.

K) Arbitration – means a process by which a tribunal other than a court decides a dispute between two or more parties under authority granted by the parties under an arbitration agreement. There might be also compulsory arbitration- without the consent of disputing parties.

When ADR is thought there are most commonly known and applicable methods in the system. In the following sub-topics major ADR methods will be discussed with their respective peculiarities and their clear cut demarcation which makes them different from one to another.

What are the advantages of ADR?

The age-old complaints lodged against lawyers and the legal process has gained an amplified resonance in the contemporary world community. The common conception is that judges and lawyers, the procedural rigor of justice and substantive incantation of legality, lay Jury and technical experts hurt more than they help. The recourse to legal actors and proceedings is cost , emotionally debilitating, and potentially counterproductive .It is to meant that now it is a common knowledge that existing justice system is not able to cope up with the ever increasing burden of civil and criminal litigation . The problem is not of a load alone. The deficiency lies in the adversarial nature of judicial process which is time consuming and more often procedure oriented.  There is growing awareness that in the bulk of cases court action is not appropriate recourse for seeking justice.

Judicial process is set in motion by the action of an aggrieved party. Each party’s case is presented before the judge by the advocators, who are expert in court craft, in straight jacket of rules of procedure and substantive law. The Judge perceived the dispute (or the issue involved ) in the backdrop of known legal concepts , sifts evidence to arrive at the truth, hears arguments to determine as to how logically the parties stand in terms of applicable legal concepts and pronounce his verdict accordingly. The parties are bound by the verdict, at the peril of legal sanctions, if disobeyed. Represented by lawyers (especially in developed countries) the parties are kept at a distance not only from the judge but also) from each other. The end result is a win–lose litigation .Thus, the dispute is liquidated and justice done or that is what is professed. But the difference between the parties continue to subsist, the competing interest of the parties remain unsolved, inter-personal relationship of the parties becomes more hardened. The adversarial court does not aim at resolution of competing claims of member of the society. It aims at upholding the one and rejecting the other , leaving the conflict between the parties un solved .Thus,  apart from the fact that recourse  to justice  through the court system is time consuming and inaccessible  due to mounting arrears, the judicial process itself is not oriented for the adjudicating upon rights –liability relationships  created under legal regimes pertaining to modern science and high technology because the subjective matter of the disputes arising from such relationship can be better understood in terms of scientific and technological concepts though disputes are stated in terms of usual legal concepts.

In its philosophical perception, ADR process is considered to be model in which the dispute resolution process is qualitatively distinct from judicial process. It is a process where disputes are settled with the assistance of a neutral third party generally of parties own choice: where the neutral is generally familiar with the nature of the dispute and the context in which such a dispute normally arise; where the proceeding are informal, devoid of procedural technicalities and are conducted, by and large, in the manner agreed by the parties; where the dispute is resolved expeditiously  and with less expenses: where a decision making process aims at substantial justice, keeping in view the interests involved and the contextual realities. In substance the ADR process aims at rendering justice in the form and content which not only resolves the dispute but tends to resolve the conflict in relationship of the parties which has given rise to that dispute.

Having stating the above general   description about the purposes of ADR in general, here under are specific purposes of ADR with their justifications.

1. A. Reduction of Cost and Time

One of motivations for ADR system is to reduce the cost and time involved in solving disputes. If a new dispute resolution system can reduce costs and achieve out comes that are just as good as those under previous system, it make the new system desirable. Law suits are expensive, some times the cost goes even the extent of making the victory of a party insignificant or exceeding of the amount of judgment .There are court fees, filling fees, lawyers’ fees, and other costs.  There would also be loses to be incurred by both litigants because of spending longer time in litigation that may not be covered by the courts awards. On the other hand, an ADR system can make it possible to use process that cost small fraction of the litigation, and yet produce as good or even better results.   Mediation is usually designed to start and finish in one day. The disputants usually share the cost of the mediator. In this circumstance, therefore, the total cost of mediation is minimal as compared to the cost of litigation.

1. B. Improve or Maintain the Relationship

In situations where the disputants have an ongoing relation , ADR system allows them to work through their difficulties in a productive way that does not destroy their relationship. After acrimonious litigation, disputants rarely want to put the past behind them and work cooperatively. The dispute resolution system may provide process that will not leave people to work together angry and frustrated with either the result or the process itself. In the ADR process the disputants could rather learn information that will allow them to work more effectively in the future.

1. C. Satisfactory Outcome

Regardless of the process used, the solution must solve the problem that exists. ADR procedures tend involve the parties with the view to achieving settlement. ADR procedures create a formal setting to bring parties together for serious attempt at resolving a problem .A dispute resolution process must move parties towards workable, durable and easily implement able out come.  ADR procedures help to afford chance that the parties can make real progress on the case and that the parties can communicate more fully and frankly through a third party.

1. D. Deal  with Emotion

The ADR process will give disputants an out let to discuss their frustrations. They will get the chance of venting emotions in non-threatening environment. This will help the disputants be satisfied with the outcome. ADR provides for effective and neutral methods or factors for achieving maximum impact on the process, strategy, and   tactics to words resolution.  A disputant will be ready to deal with the issues when he or she is satisfied that other person has listened to his or her point of view.

1. E. Avoid Future Disputes

An ADR system can yield us techniques that can resolve disputes effectively and wit out damaging relationships. The process used for a dispute at hand can provide a frame work to deal with anticipated disputes .In the future or recurring disputes, the system may help to take advantage of the resolution in the past to avoid guidance for the future, and to learn from experience.

1.5. Demerits (Shortcomings) of Litigation

As traditional approach to resolve disputes, the major draw backs may be analyzed in various aspects. The following are the major ones:

A) Cost of Litigation

Law suits are expensive. There are legal fees, filling fees and cost that can be imposed against the losing disputant. There are costs for being away from daily work to attend court hearing and at this moment the employer increase cost.  In some cases, too, the cost of trying the case may exceed the amount of the judgment.

B) Time

It takes time from the commencement of the law suit until a judgment at the trail. Even after the trial, the loosing disputant may appeal and it may take a good deal of time before final decision is rendered. The is also time that is needed for the implementation of the judgment

C) Emotional Cost

Litigation is an emotional process. It increases tension between the parties. Litigants consider, while they are out of court, what they have said; what they should have said; what they will say; how unfair the process; what they may come out under cross –examination; and the consequence of loosing.

D) Litigation is Public

The public has the right to attend court proceeding but in few confidential cases. The press report and comment on the proceeding might be dispersed through different Medias. On the other hand, the issues in the dispute may be confidential ones that the disputants do not want to share with others. Litigants may be embarrassed about the allegations made against them and may be made public regardless of whether they are true or not.

E) Absence of creative solutions

Judges are empowered to decide the issue before them according to the law, even if the solution to the issue is best fit to the other issue. Judges interpret the law relevant to the case and determine the case based on the legal rights of the parties. They are not permitted to expand the list of possible options to see if the particular case would be best served by a solution that was not argued and that application of the law would not allow.

F) Little Opportunity for the Parties to Vent Frustration

In court litigation the opportunity for the parties to say what is in their minds and   to express their views to each other is very little. Litigants can answer questions when the rules allow them to answer. There is no opportunity for them to talk about how the litigation has affected them, or to vent about what has occurred. Although there is discovery, indirect and cross- examination, there is no opportunity to ask the questions that the parties want to ask each other and to say what the parties want to say.

G) Unpredictability

In litigation, both sides argue the facts that they believe apply to the issue to support their positions. However, at the end, the judges will decide on the issue each side usually believed that his arguments and analysis is better than the other side’s. However, the issue is unpredictable and is necessary for the judge to make a decision, which is binding. As a result a risk in going to trial and putting the decision in the hands of the judge. Besides there is no    guarantee that the judge will always find the truth.

H) Expertise of Decision Maker

In trail, the court selects the judge. Moreover, the judge may or may not understand the unique attributes of the dispute. Judges may work hard to learn the law relevant to the case before them and do their best to make informed and reasoned decision. Nevertheless, they may lack the expertise in all area to properly address the merits of the claim being made.

G) Control over the Process

In litigation, the process is determined by procedural laws and by the judge, the disputants have no control over it. They are told when to sit, when to stand, when to speak, etc. they have no control who presents first and who follows, when the process at a day will finish.

H) Win/Lose

In court litigation, a judge must, determine the winner and the loser. There must be a loser in particular litigation. Therefore, litigation ends up in determining the winner and the loser; not in an agreement or will full disagreement.

I) Decisions are Imposed

Court decision is imposed on the loser against his /her expectation. People rarely like to have decision imposed on them. Most of the judgment debtors of the court judgments perceive it as extremely imposed and unjust. They consider themselves as loser. And even though judicial enforcement mechanisms can be used, mostly they attempt to avoid enforcement of this decision. on the other hand ,ADR mechanisms provides with process and procedures that would help disputing parties to fix the outcome before the end of the process or  to be convinced with whatever outcome  there may be no need of enforcing settlement agreements in negotiation and mediation.

J) Damage to Relation

Usually the end of litigation leads disputants to hate each other and their relationship is destroyed. The disputants may face difficulty to amend their relationship to the point where they can do business together and enter into future negotiation –they will take it not worth to enter in to contact with their former adversary.

1.6. Demerits of ADR

Of course, together with many advantages, ADR has been also criticized for some disadvantages. In order to get the out most advantages of the ADR, everybody needs to know the pitfalls of ADR so as to use court litigation if the latter would bring best result than the former in specific case.

Do you know the disadvantages of ADR? Can you mention them?

Different scholars approached the pitfalls of ADR from different ways: some of them specify common pitfalls of ADR methods and others on the other hand illustrate the short comings of each ADR methods. Here under are the common shortcomings of ADR methods and under chapter two there will be the discussion on the disadvantages of at least on each common ADR methods.

A) In balance of power

The benefit of voluntary negotiating agreement may be undermined where there is a serious imbalance of power between the parties –in effect , one party is acting less voluntarily than the other.

B) Lack of legal expertise

Where a dispute hinges a difficult point of law, an arbitrator may not have the required legal expertise to judge.

C) No system of precedent

There is no doctrine of precedent, and each case is judge on its merits, providing no real guidelines for future cases.

D) Enforcement

The decision not made by the court may be difficult to enforcement.  Don’t forget that other ADR scholars take easily enforcement of compromise in ADR process as one of the advantages of the system.