There are many advantages compared to a few disadvantages of mediating a dispute. Due to the numerous benefits, a mediation process is most likely to be successful because it allows all the parties involved to be in control of the conflict (Riskin, 1982). Undoubtedly, this is a better mechanism of dispute resolution as both parties can settle their disputes amicably without any external control. In addition, the mediation process is private and for this reason, the public respect for both the disputants will probably be upheld when they sort their differences (Menkel-Meadow et al., 2018). A notable feature of mediation among other things is that the costs involved are minimal compared to the expenses of dispute resolution taken through litigation (Goltsman et al., 2009). As evident, a mediation process is one of the best alternative disputes resolution (ADR) strategies that easily succeed.
Despite the advantages that disputants can derive from the mediation process, there are also some flaws attached to it. With the privacy that is linked to the nature of mediation, the procedure does not guarantee the prevention of the same misconduct by an offender (Menkel-Meadow et al., 2020). This is specifically real when the defendant’s conduct was intentional. Again in mediation, parties that are not at the same level of social hierarchy discuss their issues together, and therefore, it is open to manipulation by the party who is deemed to be superior (Menkel-Meadow et al., 2020). More explicitly, if the aggrieved side happens to be inferior to the offender, certainly, the former may not receive the compensation as per his expectations when compared to the judicial process. In the end, the relationship between the offender and the aggrieved party is strained and therefore the parties remain hostile towards one another.
From the nature of mediation, it is always an unstructured discussion between parties to reach an agreement before an impartial mediator. It means then that the physical presence of all the parties is not always an obligatory condition (Silbey & Merry, 2018). In a case where either party feels that he cannot attend the conciliation proceedings in person, she can be represented by her attorneys, or do a video call. When the client is represented by a lawyer, the main roles of the attorney advocate are limited to, advising her on the procedure and substantive law, counseling, and managing the legal process for his side (Riskin, 1982). During mediation, the lawyer continues to advise the client the same way as before the process, helping her understand what information will be important to share or to learn (Riskin, 1982). In essence, an attorney advocate acts in the best interest of the party he represents in ensuring that his side bears full responsibility for solving the dispute.
However, there are issues of conflict of interest concerning lawyer’s representation that any party who has opted to be represented by an attorney advocate needs to recognize. It means that the client should be aware of how her lawyer’s actions on her behalf are likely to affect the mediation process and consequently the outcomes (Silbey & Merry, 2018). For instance, the client should be aware of any past legal involvement of her hired advocate with the other disputant. Also, the party being represented by the legal practitioner should ensure that there is no blood relation between the other party and the hired lawyer. In simple terms, a declaration of no conflict of interests by the attorney advocate acts in building trust and confidence by all the disputants in a mediation process.
Any party in a conflict needs to participate in mediation because of many reasons that are not solely dependent on the benefits of the mechanism as a dispute resolution strategy. For my company, it is important to participate fully in the conciliation because that is an act of compliance with court orders. Participation of my boss in the dispute resolution process shows commitment to the rule of law and finding a long-lasting solution to the dispute which is before the judicature (Goltsman et al., 2009). Since the participation of my institution in the peace-talks process is ordered by a judge, the company’s involvement is mandatory. In addition, the engagement of the organization in the conciliation process restores public trust in the corporation which would otherwise dwindle if the commercial entity fails to engage in mediation (Goltsman et al., 2009). In brief, the involvement of the firm in the mediation process is an order by a court of law that needs to be implemented lest it is recharged with contempt of court.
Again, participation in the mediation process is not a matter of going before the mediator and other disputants and refusing to speak. Full participation of the company boss entails following all the procedures that characterize the mediation process (Hinshaw et al., 2021). It means that whether the company is represented by the attorney advocate or not, it has to relay its submissions during the disputants’ opening statements session (Menkel-Meadow et al., 2020). Therefore, by discussion and talking, the company responds directly to the mediator’s and the aggrieved party’s statements in an attempt to define issues that have been raised. Without a doubt, neither the company boss nor the attorney representing the company can go to a mediation process and refuse to speak as the mediation process requires their input in terms of speeches.
Dialogue is important for a vital process of mediation but it has its risks as well. More specifically, the misguided dialogue can be disadvantageous to the party that is involved in it. All the conversations of parties in a dialogue, by and large, should be within the guidelines of the set rules that govern the mediation process (Menkel-Meadow et al., 2018). The risks that dialogue poses to mediation are that some information may be relayed that in turn would undermine the process of conflict resolution (Menkel-Meadow et al., 2020). For example, if in the process of dialogue, the aggrieved party realizes that the harm meted on him was as a result of a premeditated action by the other party, the mediation may breed hostility. Furthermore, dialogue can be disruptive to mediation sessions because as parties tend to be immersed in it they may lose focus of the real intention of the mediation process. It is on this account that disputants are advised to exercise a lot of restraint when speaking during mediation.
Information that is always shared by the parties involved in a mediation process is treated with a lot of confidentiality. In this regard, not all the information shared during mediation can be used in a court of law (Menkel-Meadow et al., 2020). Nevertheless, the nature of the information to be shared in a mediation process is guided by the ground rules that have been laid by the mediator (Silbey & Merry, 2018). Besides, mediation is a strategy for conflict resolution and not a fact-finding mission. Therefore, the former employee cannot use the information or the data from mediation to prove his case before the court at the trial if mediation fails.
Goltsman, M., Hörner, J., Pavlov, G., & Squintani, F. (2009). Mediation, arbitration and negotiation. Journal of Economic Theory, 144(4), 1397-1420.
Hinshaw, A., Schneider, A., & Cole, S. (Eds.). (2021). Discussions in dispute resolution: The foundational articles. Oxford University Press.
Menkel-Meadow, C., Love, L., & Schneider, A. (2018). Dispute resolution: Beyond the adversarial model (Aspen Casebook Series) (3rd ed.). Aspen Publishing.
Menkel-Meadow, C., Love, L., & Schneider, A. (2020). Mediation: Practice, policy, and ethics (3rd ed.). Walters-Kluwer Law & Business.
Riskin, L. (1982). Mediation and lawyers. Ohio State Law Journal, 43(29), 29-60. h
Silbey, S., & Merry, S. (2018). Mediator settlement strategies. In Mediation (pp. 183-208). Routledge. Web.