____ is a process in which two or more parties are in conflict and attempt to come to an agreement.

The main difference between mediation and arbitration is the process used to solve your conflict. Both options will help you solve a legal issue outside of the traditional court process, but they use two different methods to get you from A to Z.

• Mediation: a non-binding process generally conducted with a single mediator who does not judge the case but facilitates discussion and eventual resolution of the dispute.
• Arbitration: typically a binding process that 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). Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Then, those two arbitrators select a third arbitrator, at which point the dispute is presented to the three chosen arbitrators. Decisions are made by majority vote.

Arbitration and mediation are similar in that they are alternatives to traditional litigation, and sometimes they are used in conjunction with litigation (opposing parties may first try to negotiate, and if that fails, move forward to trial). Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. 

The Success of Mediation in Modern Litigation

Litigation is generally something people seek to avoid. It's expensive, time consuming, emotionally draining and unpredictable –- until a judge or jury decides the case, you can never be certain of the outcome. Because litigation is so inefficient for most of us, alternative dispute resolution, such as arbitration and mediation, has become increasingly popular. But before moving forward with possible alternative dispute resolutions, you should first know the difference between arbitration and mediation.

Mediation has enjoyed increasing popularity as an important part of the litigation process. For example, in Florida, almost all lawsuits are required to be mediated before a court will allow them to be put on the trial calendar. The reasoning behind this requirement, according to the Florida Senate, is because mediation has proven effective in reducing court dockets and trials, and offers a more efficient, cost-effective option to litigation.

Mediation enjoys such high success rates because the parties are brought together in an environment where they can freely and confidentially present their position in front of a neutral third party. Mediation attempts to limit the issues and put them into proper perspective. Participants often feel much better after having an opportunity to get things "off their chest," and also benefit from hearing the other party's point of view. The neutrality and more relaxed atmosphere of mediation may eliminate the desire to continue hostile litigation once both parties have seen all the issues in a fair light.

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. Pre-lawsuit mediation is becoming more widely accepted as a sensible way of resolving disputes before they turn into litigation. Besides being confidential and non-binding, mediation is relatively quick and inexpensive compared to litigating a dispute.

Please note that while most certified mediators are attorneys, 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. When the parties come to an eventual agreement, the parties themselves will put the agreement in writing and sign it so that it then becomes a binding contract.

Pre-Mediation Contracts

If you want to mediate a dispute, you and the opposing party should enter into a pre-mediation contract.  This simple contract should include the following:

• The mediation should be confidential and non-binding.
• The parties should agree on who will conduct the mediation and how the mediator will be paid. The cost of the mediator is typically split between the two parties.
• The parties should agree on the length of the mediation. Most mediation is scheduled for either a half-day or a full day.
• The parties should agree to mediate in good faith until either party reasonably determines that it is fruitless to continue. If the parties cannot reach an agreement, the mediation will result in what is known as an impasse.

Where Should You Begin?

If two or more parties have a dispute that they think may be appropriate for mediation, they may contact an attorney to advise them on the benefits of mediation versus litigation and to help them locate a mediator. If the parties like to mediate on their own without the help of attorneys, then they should contact their state bar association who will have a list of mediators to contact for an appointment. Alternatively, they can get in touch with a mediation and/or arbitration organization.

Mediation is a less hostile, less confrontational format for resolving disputes, where parties attempt to resolve their differences between themselves rather than relying on an inefficient, expensive, and time-consuming judicial system. Before your litigation advances, work with your attorney to determine if mediation is right for your case.

Learning OUtcomes

• Identify stages of the conflict process

The conflict process—that is, the process by which conflict arises—can be seen in five stages. Those stages are:

•     Potential opposition or incompatibility
•     Cognition and personalization
•     Intentions
•     Behavior
•     Outcomes

Potential Opposition or Incompatibility

The first stage in the conflict process is the existence of conditions that allow conflict to arise. The existence of these conditions doesn’t necessarily guarantee conflict will arise. But if conflict does arise, chances are it’s because of issues regarding communication, structure, or personal variables.

• Communication. Conflict can arise from semantic issues, misunderstanding, or noise in the communication channel that hasn’t been clarified. For instance, your new manager, Steve, is leading a project and you’re on the team. Steve is vague about the team’s goals, and when you get to work on your part of the project, Steve shows up half the way through to tell you you’re doing it wrong. This is conflict caused by communication.
• Structure. Conflict can arise based on the structure of a group of people who have to work together. For instance, let’s say you sell cars, and your co-worker has to approve the credit of all the people who purchase a vehicle from you. If your co-worker doesn’t approve your customers, then he is standing between you and your commission, your good performance review, and your paycheck. This is a structure that invites conflict.
• Personal variables. Conflict can arise if two people who work together just don’t care for each other. Perhaps you work with a man and you find him untrustworthy. Comments he’s made, the way he laughs, the way he talks about his wife and family, all of it just rubs you the wrong way. That’s personal variable, ripe to cause a conflict.

Cognition and Personalization

In the last section, we talked about how conflict only exists if it’s perceived to exist. If it’s been determined that potential opposition or incompatibility exists and both parties feel it, then conflict is developing.

If Joan and her new manager, Mitch, are having a disagreement, they may perceive it but not be personally affected by it. Perhaps Joan is not worried about the disagreement. It is only when both parties understand that conflict is brewing, and they internalize it as something that is affecting them, that this stage is complete.

Intentions

Intentions come between people’s perceptions and emotions and help those who are involved in the potential conflict to decide to act in a particular way.

One has to infer what the other person meant in order to determine how to respond to a statement or action. A lot of conflicts are escalated because one party infers the wrong intentions from the other person. There are five different ways a person can respond to the other party’s statements or actions.

• Competing. One party seeks to satisfy his own interests regardless of the impact on the other party.
• Collaborating. One party, or both, desire to fully satisfied the concerns of all parties involved in the conflict.
• Avoiding. One party withdraws from or suppresses the conflict once it is recognized.
• Accommodating. One party seeks to appease the opponent once potential conflict is recognized.
• Compromising. Each party to the conflict seeks to give up something to resolve the conflict.

We’ll talk about this a little more in the next section when we use these styles to manage conflict.

Behavior

Behavior is the stage where conflict becomes evident, as it includes the statements, actions and reactions of the parties involved in the conflict. These behaviors might be overt attempts to get the other party to reveal intentions, but they have a stimulus quality that separates them from the actual intention stage.

Behavior is the actual dynamic process of interaction. Perhaps Party A makes a demand on Party B, Party B argues back, Party A threatens, and so on. The intensity of the behavior falls along a conflict oriented continuum. If the intensity is low, the conflict might just be a minor misunderstanding, and if the intensity is high, the conflict could be an effort to harm or even destroy the other party.

Outcomes

Outcomes of a conflict can be either functional or dysfunctional:

• Functional outcomes occur when conflict is constructive. It may be hard to think of times when people disagree and argue, and the outcome is somehow good.  But think of conflict, for a moment, as the antidote to groupthink. If group members want consensus, they’re bound to all agree before all the viable alternatives have been reviewed. Conflict keeps that from happening. The group may be close to agreeing on something, and a member will speak up, arguing for another point of view. The conflict that results could yield a positive result.
• Dysfunctional outcomes are generally more well known and understood. Uncontrolled opposition breeds discontent, which acts to sever ties and eventually leads to the dissolution of the group. Organizations meet their ultimate demise more often than you’d think as a result of dysfunctional conflict. People who hate each other and don’t get along can’t make decisions to run a company well.

Managing conflict in today’s business world is a must. We’ll look next at how that’s done.

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