Mediation.
Probably one of the most familiar forms of ADR, but often misunderstood, is the concept of mediation. Simply stated, mediation is a process whereby a third party neutral, the mediator, helps disputing parties reach a mutually acceptable resolution of a dispute. The mediator has no authority to decide the dispute, only working as a facilitator to help the parties overcome barriers. The vast majority of all lawsuits are settled before trial, so mediation can serve as an effective alternative to the costly and time-consuming process of litigation.Additionally, it is a confidential process, and nothing said in a mediation can be used against a party in a lawsuit if the case doesn’t settle. Probably one of the most desirable advantages of mediation is the flexibility of the process. At mediation, the parties are in control of whether the case will settle or not -- not the lawyers, judges, or juries. Additionally, the mediation process offers the parties the flexibility of fashioning their own creative resolution of the dispute, unlike court, where there is one winner and one loser, with little opportunity to create a settlement which meets everyone’s needs.
Arbitration.
Contrary to mediation, arbitration is a procedure whereby the third-party neutral (or in some cases, a panel of neutral arbitrators) hears the evidence in a private dispute and makes a decision, or award, to which the parties must comply. Although that description may sound no different than court litigation, it is quite different and has many advantages over traditional court proceedings. Like mediation, it is a confidential process. Additionally, it is much more informal than court, and the rules of evidence are more relaxed. Also like mediation, it is generally much less time-consuming and expensive than traditional litigation, and the arbitrator typically has more technical subject matter expertise in the area of the dispute than does a judge. Finally, the award in arbitration is generally more final than a court verdict, as the avenues for appeal are more limited. It’s for these reasons that arbitration is generally favored by businesses in commercial, construction, labor and employment disputes.
Fact-Finding.
When sensitive workplace disputes arise, a fact-finding investigation is often necessary to reduce potential legal exposure and ensure legal compliance. While most workplace investigations can be handled internally, many issues call for an investigation by a neutral third party. This may be the case in those situations where potential monetary exposure is significant, allegations are made against upper echelon officials, company personnel are too close to a situation to make a credible determination, and/or if the skill level of those charged with the duty to investigate is not what it should be. What makes these situations more complicated is that the organization’s legal counsel may effectively be precluded from conducting the investigation for fear of losing various legal privileges. In these cases, a neutral investigator may be necessary to conduct an independent investigation with appropriate legal conclusions and recommendations.
Facilitation.
Facilitation is used in public and private sector organizations when groups, units, or departments are encountering difficulty in achieving consensus, solving problems or resolving conflict. In contrast to mediation, facilitation generally involves multiple parties, and/or larger groups. Trained facilitators provide technical assistance and guidance to these groups by assisting in the exchange of information, helping parties to communicate more effectively, and in building consensus. Much work in the facilitation process takes place outside of group meetings, as effective facilitation requires diagnosis of the conflict, planning and preliminary assessment of group dynamics, designing a process which will be effective, training the parties on the necessary skills, in addition to moderating and facilitating the management of group meetings.
