Meditating on Mediation

1. How are mediation and arbitration similar in their relation to litigation?

In mediation, the mediator, essentially, helps parties to settle their disputes by a

process of discussion and narrowing differences. The mediator helps the parties to
arrive at an agreed solution. A successful mediation results in an agreement signed by
the parties, whereas a contested arbitration results in a decision by the arbitrator
himself without the agreement of the parties. Contrary to mediation, litigation and
arbitration are binding forms of dispute resolution where a judge or an arbitrator hears
evidence and renders a decision.

2. What are the main differences between mediation and arbitration? Name at least three
differences and remember that, in order to answer this question, you may need to
conduct research beyond the link to the article above.
- Mediation is a non-binding process where the mediator helps parties involved
come to an agreement. Arbitration is a binding process which replaces the full
trial process with multiple (often three) chosen people to serve as judges in your
case.
- Arbitration is generally conducted with a panel of multiple arbitrators who take on
a role like that of a judge, make decisions about evidence and give written
opinions (which can be binding or non-binding). Mediators will not give legal
advice during the mediation and are not supposed to make legal conclusions
about the merits of either party's position.
- Arbitration is generally more costly than mediation and may involve the same
expenses as going to court.

3. What is the advantage of mediation over litigation? Why is it preferred to litigation?

Litigation is generally something people seek to avoid. It's expensive, time consuming,
emotionally draining and unpredictable, which increases the popularity of alternative
dispute resolutions like arbitration and mediation. Mediation has proven effective in
reducing court dockets and trials, and offers a more efficient, cost-effective option to
litigation. Mediation can be used for any kind of dispute; there is no need to wait until a
dispute results in a lawsuit and is sent to mediation by a judge.
 4. Assume that a mediation ends in an agreement that resolves the conflict, and the written
agreement is signed by the parties to the agreement. What kind of business document
is created? What level of authority (the business, city, local government, state
government, or federal government) can enforce the terms of that written agreement?

An “Agreement document” will the created after a mediation and the business is the one
who can enforce the terms of that written agreement since there is no lawsuit involved.

Next, imagine you are part of a start-up business that is developing a strategy to deal with
workplace conflicts. You are one of the organization’s three leaders and are helping to set up
HR policies. One of your colleagues, Pat, says that they would like to make mediation a formal
part of any workplace conflict or complaint because of the high success rate of mediation. Pat
also suggests that workers sign a contract saying they will enter into mediation before suing
anyone in the company, even after they leave the business.

Your other colleague, Taylor, argues against requiring mediation for all types of complaints,
noting that power differentials can make it easy for bosses to intimidate employees in these
situations and also points out that there are just some conflicts—such as those that involve
allegations of sexual harassment or discrimination based on race, religion, sexual orientation, or
gender—that are inappropriate for mediation. In addition, Taylor points out the potential
frustration and anxiety that could be felt by someone who experienced a major “conflict,” like a
physical or sexual assault, having to be in a room with their attacker for mediation.

Your colleagues are at an impasse. Your goal for this lab is to write a business letter that helps
to solve this problem by making an argument for one of the two positions (mandatory,
contractual mediation for all conflicts or mediation for certain kinds of conflicts only) or by
presenting a third, distinct position (rejecting mediation completely, for example). 

The letter needs to be professional and provide constructive criticism of whichever position(s) it
doesn’t support, and it should be concise: no more than two pages long but long enough to
make an argument at least one-page long. Remember that this letter is not about solving this
one conflict but about participating in a team effort to accomplish the common goal of having the
best conflict resolution policy you can design. Also, this is not an essay; this is a business letter,
and it should be formatted as such.
Joan Lau
123 Main Street
Anytown, CA 12345
555-555-5555
joan.lau@myemail.com

October 19, 2020

Pat and Taylor

Co-Leader
Company Name
123 Business Rd.
Business City, NY 54321

Dear Pat and Taylor,

It has come to my attention that there is discussion within the company about whether
mediation as an Alternate Dispute Resolution should be assigned as a mandatory
process prior to litigation. I would like to count myself in the team effort to come through
to a fitting resolution policy.

The mediation process is an effective addition and frequently an adequate replacement

of arbitration. However, imposing this mediation process might bring up more problems
to the table, turning into a costly, time-consuming and a pointless exercise. To avoid the
aforementioned unwanted outcomes, each case should be independently evaluated to
determine if a mediation is likely to be fruitful. Furthermore, we must consider the fatal
repercussions for those who are truly in danger if a mediation were to be conducted.

In summary, I propose that mediation be required, unless one side of the participant has
a supervised medical document that prohibits them from engaging in a mediation with
the other party. Cases involving an offender and a victim specifically should be
dismissed completely of mediation if one participant expresses discomfort). Otherwise,
mediation is crucial and must be suggested before a lawsuit is filed.

Please contact me for more information about company policies.

My cell phone number is 555-555-5555, and my email is joan.lau@myemail.com.

I look forward to hearing from you. Thank you for your consideration.

Sincerely,

Joan Lau