Mediation vs. Negotiation
Alternate Dispute Resolution (ADR), mainly denotes a wide range of dispute resolution processes that act as a means of disagreeing parties to come to an agreement without using the means of litigation. It is a collective term which refers to the ways in which the parties can settle disputes, with the help of a third party. It is also known as external dispute resolution (EDR). ADR has gained widespread acceptance among both the general public and the legal profession in the recent years and is also being adopted as the means to help settle disputes alongside court system itself. Apart from arbitration, mediation and negotiation are some of the most popular forms of ADR. Here, mediation and negotiation will be analysed and compared with each other.
Mediation is a form of Alternate Dispute Resolution in which a third neutral party attempts to assist the disputing parties in reaching an amicable settlement and a mutually acceptable agreement. It is the most uncomplicated method of dispute resolution where the third party acts as a mediator to resolve the dispute between the parties by using the means of communication and negotiation. The process of mediation is completely controlled by the parties since the mediator is only a medium to facilitate the process of reaching an amicable settlement. A mediator’s suggestions are not binding on either of the parties. Mediation as a form of Alternate Dispute Resolution has attained a statutory status under various Indian laws and has also been recognised by the courts while pronouncing judgments.
Negotiation on the other hand may be defined as any form of direct or indirect communication through which parties who have conflicting interests discuss the form of any action which they might take together to manage and ultimately resolve the dispute between them. Negotiations may be used to resolve an existing problem or to lay the groundwork for a future relationship between two or more parties. It must be noted that there is no compulsion for either of the parties to participate in the process of negotiation. The parties have the free will to either accept or reject the decisions that come out of the process of negotiation. There is no restriction in the number of parties that can participate in the process of negotiation. They can vary from two individuals to the process involving dozens of parties. Unlike arbitration and mediation, the outcome of a negotiation is reached by parties together without resorting to a neutral third party. The process is flexible and informal also ensures confidentiality at the choice of the parties.
When used as a medium for resolving a dispute, negotiation and mediation share a lot of similarities; though mediation is essentially assisted by negotiation. However, they are different and, it is suggested, most appropriate in different circumstances and at different degrees of dispute; the less able parties are to communicate the more likely they are to need mediation. Negotiation, in most instances, is cheaper and quicker than mediation. This because no prior preparation is required I the case of negotiation, whereas some mediation requires some preparation such as supporting information, venue, etc. need to be arranged. As mentioned earlier, negotiation is the most flexible of all the ADR mechanisms since it is completely under the control of the parties. Mediation, though flexible, is a process which the parties are undertaking in the presence of a third party. As mentioned above, negotiation involves complete part autonomy. Though in the process of mediation, the parties have a control, however, it is not the same as in the process of negotiation. Settlement in mediation is arrived at, with some assistance, by the parties, but the record of the agreement is made by the mediator and is therefore independently recorded. On the other hand, negotiation is at the mercy of the ability of the parties to properly record it.
Negotiation should always be the first step in any dispute resolution. It is a quick, cost effective and flexible form of self help and the vast majority of disputes can be settled by this method. However, it does not always work. When negotiation fails mediation can be an effective method of settlement. The main aim of any dispute resolution system is to help the parties reach an amicable settlement, irrespective of which method is adopted