Alternative Dispute Resolution
Name
Institution
Alternative Dispute Resolution
Going to arbitration will require finding a third party who is in a position to hear the case and offer a ruling. The arbitrator has the power to hear the case and deliver a ruling that will bind both parties. The third party hears the dispute represented by both parties and he imposes a binding decision. The parties will decide on the arbitrator to use. They will present their evidence before the arbitrator, who will then use it when making decisions (Atlas et al., 2000). This approach is often faster and cheaper to use compared to taking the issue to court. Once the case is over, they do not have the chance of making an appeal. Arbitration is more formal compared to mediation and it tends to be relatively more expensive. However, it is cheaper than taking the issue to court.
When using mediation, the concerned parties will be able to come up with a solution that satisfies them. Using this approach will require both parties to agree on the mediator to use to resolve their dispute. Going to mediation will allow the parties involved in the dispute to talk about the issues affecting them and they will be able to see each other’s point of view. This will make it easier for the parties to resolve their dispute (Spencer & Brogan, 2006). The parties are more likely to follow up on the agreed decision because they came up with it in the first place. No party will feel pressured if this approach was used because of all them are involved in the dispute resolution. The case will be over once the parties agree on how to settle the dispute. The parties concerned will not have to spend additional time on appeals. However, finding a skilled and non-biased facilitator may prove to be a challenge. Moreover, the parties involved may fail to get the time required to discuss the issue.
The parties can decide to use structure a settlement if they feel that the plaintiff has sufficient and strong evidence. They may also do it as a way of avoiding the courts. Both parties are involved in reaching a settlement. They both present their offers and counteroffers. However, the parties do not always agree. The defense might point out the weaknesses of the plaintiff’s evidence when proposing his offer. Settlements are agreed at through negotiations. This can involve the direct participation of the parties involved or the lawyers on both sides can handle the matter. The parties might require a judge, who acts as a settlement mediator. They can also decide to use other people with experience in the legal profession and they can hire professional mediators, retired judges, and law school professors (Bagley & Savage, 2009).
Using an arbitrator or a mediator will
ensure that the issue is settled out of the court. Both parties will benefit
because the process tends to be cheaper than going through court proceedings. A
lot of money and time will be saved because the parties do not have to involve
their lawyers for a long period. Moreover, the parties do not have to deal with
any juries or complex evidence presented in the court. Arbitration tends to be
more formal than mediation (Cagan, 2007). However, in this case, mediation will
tend to be more effective than arbitration. This is because the parties will
find it easier to use a mediator instead of arguing their case to each other. The
mediator does not act as a fact gatherer and neither does he apply the law, as
would be the case with an arbitrator. He offers both parties the chance to
speak and to air their concerns. The issue concerned in sensitive and the
plaintiff may be looking for more than monetary compensation and settlement. A
mediator will ensure that the physician gets relief as well (Atlas et al.,
2000)
References:
Atlas, F. N., Huber, K. S., & Huber, T. W. (2000). Alternative dispute resolution. Chicago, IL: American Bar Association
Bagley, E. C., & Savage, D. (2009). Managers and the legal environment: Strategies for the 21st century. New York, NY: Cengage Learning
Cagan, M. (2007). Streetwise incorporating your business: From legal issues to tax concerns, all you need to establish and protect your business. Avon, MA: Adams Media
Gartner, W., & Bellamy, M. (2008). Creating the enterprise. New York, NY: Cengage Learning
Spencer, D., & Brogan, M. (2006). Mediation law and practice. Cambridge, MA: Cambridge University Press