Introduction
Alternative Dispute Resolution (ADR) is a process of solving disputes legally instead of litigation. It was established in the Legal Services Authorities Act 1987 to offer alternative procedures other than using official judicial methods for solving disputes. The main attribute of ADR is to achieve agreement between the involved parties without using court processes. Notably, not all individuals can afford litigation costs, hence ADR provides a chance to access justice. Consequently, civil procedure rules gave judges mandate to end court proceedings whenever they felt that the issue could be solved through ADR, irrespective of the parties’ opinion (Lawteacher, 2018). Hence, the public and legal professionals have adopted ADR as a dispute resolution mechanism, as well as over the years to the extent that the court recommends justice through ADR.
Alternative Dispute Resolution
Alternative Dispute Resolution gained popularity since it is more efficient, less expensive, and more satisfactory than traditional litigation processes. Some of ADR methods include arbitration, a procedure where disputing parties give their arguments and proof to an independent third party (arbitrator), to solve their conflict by making a determination. The second aspect include negotiation, which involves an independent third party who identifies a disputed subject and develop options, examine alternatives, and finally come to an agreement. Mediation is the third concept , which involves an independent third party (mediator) who helps disputing parties to come to an agreement (NSW). The difference between mediation and the other two alternatives is that mediator resists from offering advice or opinion on the subjects since they do not have a role in choosing the outcome.
Growth of Alternative Dispute Resolution (ADR) processes can be traced to two different occurrences. First, advocates for justice in 1960s and 1970s realized lack of responsiveness in the formal judicial processes and wanted to find better procedures and outcomes. This concern ignited a desire to reduce monopoly of lawyers in dispute resolutions, and instead include local institutions that used members of the community and expertise in these areas of dispute. The belief was that flexible party controlled processes would offer the chance to be creative, give pareto-optimal solutions, reduce waste and harm to disputers involved, improve relationships, and achieve more responsiveness to the interests and needs of the parties, instead of stylized arguments of the formal justice system. The second argument made by judicial officers was that litigation involved high costs and delays (Meadow). Hence it was important to divert some cases from court, to reduce case backlog as well as offer more efficient methods of offering justice.
Alternative Dispute Resolution became famous with civil procedure reforms introduction in England, Hong Kong, and Australia. The Civil justice system review of Lord Woolf in Wales and England ignited these major reforms, especially judicial case management introduction and pre-litigation ADR. Even though many mediation schemes in Australia before the Woolf’s report were available, the England report offered a thrust for a civil litigation national review. The Woolf report was also influential to Hong Kong after judiciary realized that mediation was significant in supplementing proceedings of the court. This influence can be traced to the Civil Justice Reform (CJR) of 2009. The main objectives of CJR were to reduce cost of civil procedures, to facilitate disputes settlement, and to promote reasonable procedural economy (Meadow). Hence, the ADR promises ownership of conflict, autonomy of parties, and opportunities to transform.
Concept of Mediation
Mediation involves an impartial third party known as a mediator, bringing in an agreement on a contested issue. Many times, when people face the prospect of divorce, the first choice is always going to trial. However appearance before judges can be terrifying, hence mediation becomes the more comforting option. The process has emerged as an important dispute resolution alternative in the past 30 years (Lawteacher). Notable, mediation provides an alternative to formal legal process.
Mediation is applied due to several reasons; firstly, it can be organized within a few hours, hence reduce operational costs. Secondly, mediation is affordable, with cost being approximately 100 pounds per party which is quite affordable compared to the amount paid for litigation. Thirdly, mediation is confidential as compared to litigation since no winners and losers, such as in courts. Instead, mediation leads to a mutual agreement where both parties benefit. Fourthly, mediation offers space to parties in a dispute by giving consideration to values, such as meanings, emotions, and relationships (Lawteacher). Hence, mediation emphasizes on process, procedures, structures and communication styles.
Different models have been applied in choosing the favorable mediation approach. The first aspect is the satisfaction story that mediation is superior to adversarial dispute resolve since it applies integrative and collaborative approaches to achieve a win-win situation. The second aspect is social justice story, which contends that parties should be organized by common interest to attain justice. The third approach is the transformation story, revealing that parties should explain their disputes and objectives in their own terms. The final one is oppression story, which maintains that mediation can be dangerous due to its informality since the stronger party can take advantage of the weaker one. The satisfaction story is the most common based on the idea that conflicts require a solution. On the other hand, transformative mediation leads to recognition and empowerment (Lawteacher). Therefore, mediators usually have to make a choice between problem solving and transformative approaches since they cannot be combined.
Mediation models consider dispute to be neither bad nor good. Instead, states that a dispute is an event of competing needs and interests among parties, who are neither wrong nor right. They highlight that conflicts are not meant to be solved but to learn from, hence the more dangerous the mediation, the more transformational it becomes. Mediation can be applied using various mediation styles, such as settlement-driven, generic, cognitive, narrative, and humanistic (Lawteacher). All these style vary in the level of focus on problems, emotions, feelings, interests, and needs of parties.
Mediators can apply any style of mediation depending on its efficasy. The first approach is the facilitative mediation popularized in 1960s and 1970s. In this style, the mediator structures a procedure to help parties mutually reach a resolution.He or she is tasked with questioning parties, in a way that normalizes and validates the points, inquires their interests, and help them to analyze the options and agree on a settlement. A facilitative mediator resists from giving recommendations to the disputing parties, and advising or offering opinion of the case outcome, and neither do they forecast results of the case. The mediator works on the process while parties work on the outcome. The main aim of facilitative mediators is to assist parties agree based on understanding and information, and allow them to listen to each other’s views. These mediators expect the parties to influence the decision-making process instead of the party’s counsel. During the beginning of facilitative mediation, ADR was usually on volunteer basis (Zumeta). Hence the mediators had no required expertise on the disputed issue.
The second style is the evaluative mediation, which was created in settlement conferences conducted by judges. The mediator helps parties to come to a resolution by identifying the weaknesses in their dispute, and forecasting what a jury or a judge will probably do. This kind of mediator makes informal or formal recommendations to the disputers about the case outcome. Evaluative mediators focus on parties’ legal rights and not their interests and needs. They anchor their evaluation on the guide of legal notion of fairness. Mediators usually convene separately with disputers and their attorneys to practice shuttle diplomacy. They assist the parties and their counsels to examine the legal costs and position in relation to benefits of considering a legal resolution instead of mediation. The mediator sets the process and has a direct influence on the mediation outcome. This process rose in court-referred mediation where attorneys in collaboration with the court select a mediator and actively participate in the mediation process (Zumeta). The assumption is that they have wide expertise in the disputed area.
The third and the most current style is transformative mediation. It is based on empowerment values of each party and recognizing other party’s interests, needs, and values. The belief is that either one party or both have the potential of being transformed through mediation. Mediators and the parties convene and offer each other recognition (Zumeta).These mediators allow parties to shape both the procedure and outcome of the process, while the mediator follows them.
History of Mediation
Mediation is internationally recognized especially in African and Asian countries. In 1998, Lord Chancellors’ Department found out that 62% of cases were completed efficiently using mediation without reference to court. They also found out that mediation was successful in handling many cases such as personal injury and divorce, where divorce mediation was strengthened following Family Law Act of 1996 (Lawteacher). Since 1998, mediation in the Unites States has gained popularity from 10% to over 50%, while in the United Kingdom it has not gone past 50% as of the year 2018. In Ireland, cases resolved through mediation were 44 in 2008 and 64 in 2009 according to reports by Equality Tribunal Mediation Review (Lawteacher).
The United States gained interest in mediation as a form of dispute resolution in the 1960s following an upsurge of conflict, strife and discontent due to Vietnam War, students and labor unrests, gender roles challenges, and racial discrimination protests. These issues raised the demand for courts, yet there was no increase in court resources leading to a backlog in civil case dockets. In addition, there was an increase in domestic relations cases, which came up by the acceptance of divorce. Hence court related family mediation increased to preserve judicial resources and offer better results, especially where children were involved. On the other hand, community based mediation sessions prospered out of the courts as a means to solve neighborhood disputes. More so, legal services began mediation and arbitration in cases where the parties could not afford court fees, hence this led to mediation offered by attorneys more popular (Folberg 36). Hence courts started hiring full time employees to handle mediation programs.
The Alternative Dispute Resolution Act of 1998 expected all district courts to create ADR programs. Later, the American Arbitration Association expanded and allowed commercial mediation in the 1980s. In addition, the Center for Public Resources in collaboration with law firms had corporations and law firms promise that they would welcome mediation to solve conflicts instead of pursuing litigation. This led to opening of the first private ADR provider in 1979 and others were created later. Following this efforts, in over 25 years period, trials by jury in 22 states in the U.S have declined by more than 25% (Folberg 37, 38). Hence mediation has become a popular method for dispute resolution out of courts.
The Mediation Process
Mediation involves intervention of a neutral third person who assists the involved parties in reaching a settlement, through injecting doubt, reality, and fear in their positions. The main goals of mediation are fact finding, negotiation, and resolution. Mediation undergoes many phases, starting with preliminary arrangements such as selection of a mediator, date, fees, time, and place. The second phase is opening statements of parties, which involves information gathering, mediators opening comments, issues identification, and options generation and bargaining, Finally, impasse or agreement phase, which involves drafting memorandum of settlement is initiated (Coleman). The mediator is responsible for managing the entire mediation process.
In the mediation process, the mediator plays the role of the executive while the disputing parties are responsible for content brought in the process. The mediator helps the parties through the process by engaging them in creative thinking about the conflict in question, and also facilitates the participants by asking queries (Lawteacher).This helps them to create attitudes and thoughts about their disputes.
The process of mediation is structured in various stages. The first stage involves preparations conducted before the day of mediation. These might involve setting venue, dates, exchange of documents, and discussion of mediators’ fees. At this level the mediator might assess parties’ personalities, their needs, and other settlement discussions. Second the opening phase starts when a mediator is appointed and calls for a meeting with the participants. The mediator sets the tone, outline the process, and suggest a resolution-finding method. The main activity is to create trust and confidence in the mediation process, to establish rapport, and to initiate h ground rules. The third stage involves parties giving their perspective without interruption. The parties first narrate a version of the issues leading to mediation (statement of innocence). The second part is where the parties give their story illuminating the other party as the bad person (story of responsibility), and the last part is the tellers defining the problem leading them to mediation. The third stage is the exploring phase where parties are helped to fathom the others perspective. This gives the mediator an understanding of the interests of the parties and assists them to identify any obstacles that might arise. The fourth stage is the negotiating phase where parties highlight the particular matters that need to be resolved. The mediator frames the subject in ways that encourage problem solving. In the final stage,the mediation finally leads to an agreement. The mediator assists in changing from a preferred alternative to a settlement agreement. (Lawteacher). When an agreement is not achieved, the mediator acknowledges the current progress and could suggest for future mediation.
Concept of Divorce
Marriage can end after death of one of the spouses, a decree of nullity can be filed to show that no valid marriage existed, or it can be terminated through a divorce. Currently, the rates have increased with more than 33% of marriages ending up in divorce. These high rates can be associated with increased social mobility, increased life expectancy, increased liberation of women, permissiveness of society, acceptability of divorce, decline in spiritual beliefs and freedom of Divorce Reform Act of 1969 (Lawteacher).
Until the mid-nineteenth century, the law viewed marriage as a lifelong union that cannot be dissolved. The courts could only allow divorce a mensa et thoro through a judicial separation and not divorce. The parties could live separately but they were not allowed to remarry. The only way to get divorced was by Private Act of Parliament, which was quite expensive and lengthy. The first freedom was introduced by Matrimonial Causes Act of 1857, which allowed the court to allow divorse whenever the petitioner proved adultery of the accused and in absence of condonation and collusion. Adultery remained the only allowable reason for divorce; however, the Matrimonial Causes Act of 1937 introduced other allowable reasons, including bigamy, sodomy, incest, cruelty, insanity, and desertion. Hence, estimates show that since 1973, there was a likelihood that 44% of marriages would end up in divorce. By 1980, analysts found that 50% of marriages ended up in divorce. These observations have been the same until the 2000s (Kennedy & Ruggles. 587). Hence divorce rates have remained constant since 1980s.
Mediation in Divorce
Divorce is a decision that involves financial, emotional, and legal difficulties for spouses, children and all family members. During formal divorce proceedings, relations in the family cease becoming private matter since professionals have to be involved. Traditional divorce process was set as a win-lose scenario where lawyers took an advisory, partisan and representative position in the litigation process, while mental health expertise worked on the emotionally positioned issues concerning parenting and children (Baiter 57). Hence, divorce was a collaborative process involving different parties.
Solving family issues, especially when children are involved needs a less traumatic and adaptable process. Mediation is one mechanism of cordial resolution of family relationships, since not only does it focus on the specific divorce disputes and issues but also rights to parental care, relationships to the children, and other disputes connected to the entire family associations. Hence, it is encouraged as a vital method of resolving family disputes, including divorce, especially when children are involved. Notably, divorce is a distressing process for children.The process leads to major changes in their lives since they cannot influence it, and hence, it affect their emotional development (Senija 416). Hence, mediation helps preserve relationships between parties, protects and promotes the family, especially the minors.
Mediation plays a vital role in matters concerning the family. During divorce, both parties engage mediators to solve dispute and agree on a particular settlement instead of involving a court process. The significance of mediation in divorce was popularized by the Family Law Act of 1996, though it has its own set of challenges. Mediation, as highlighted by the Legal Aid Board, can be denied unless it appears to be the best alternative for a particular case. A code of practice is put in place to keep likelihood of reconciliation under review through the entire process and to notify clients on independent legal advice availability. Mediation is provided at early stages of divorce process, through invitation to the party to attend a briefing with mediators and examine whether it is possible to take advantage of the facility (lawteacher). Hence, in some cases disputers can be denied the alternative of mediation, leading to court litigation.
Practical Case
Melany and Steve from Massachusetts, aged 48 and 47 years respectively decided to divorce. They had three children ages 12, 14, and 18 year olds, and worked for reputable companies with steady income. The main issue was their marital home whose market value was $600,000 and mortgage was $300,000. The mortgage and home bore both their names, hence they considered divorce mediation to resolve the current and upcoming issues.
Before the mediation sessions, Melany and Steve were angry, nervous, defensive and could not hold a civilized conversation, hence during the sessions, the mediators were able to assist them relax and face their fears. They were able to discuss the issues and came up with the conclusion that the children were the main priority. Hence, the mediation provided a healthy and civilized process regarding common goals.
The mediator was able to educate the couple and offer options. The first option was to sell their asset at an agreed price. They could agree to use a broker and get advice from a mediator or a counsel on, the sale process, preparation of the house, and division of the proceeds. The second option allowed any party to buy the asset at that particular time. The parties would find an approximate fair value of the house and agree on a buyout price and this could be achieved through the help of a mediator. The third option was for one party to live in the house for a specified time, after setting a final date to which they would sell or refinance. They decided that Melany would remain in the house and pay all costs except major repairs and capital movements. The agreement was that the two parties would stay on the mortgage and the title. Ultimately, Melany could buyout Steve in the next 5 years or refinance. In addition, they agreed that the parties would co-parent the children and revisit the agreement after 5 years.
Discussion of the Dispute
Two main entities are at stake in Melany and Steve divorce. The first one is their marital home whose market value was $600,000 and a mortgage that was worth $300,000 which bore both their names. The second issue was the children. They, needed to agree on parenting mechanism. Past studies show that divorce has a major impact on children of the respective parties, due to the fact that divorce tend to be stressful to both children and parents. In fact, reports show that children who come from divorced families tend to have behavioral and emotional problems up to the age of 23 years, as compared to those in non-divorced, high conflict families (Rappaport 358). Hence, the shared property and children were the main things at stake in this mediation.
Power of the Parties
Power refers to the ability to influence outcomes and affect actions and perceptions of other people. Power of mediators is their ability to shift parties in an intended direction. However since the mediation process is non-binding, voluntary, and non-violent, it makes sure that power is concentrated with the disputing parties and not with the mediators, since the parties have power to commence mediation as well as to terminate it (Azad). Hence, before mediation starts, the mediator must gain acceptability from the parties and must have the ability to satisfy the disputers through application of different strategies and techniques.
Mediators can possess reward power that allows them to propose change in behavior in exchange for side payments, coercive power that rely on sanctions and threats meant to change behavior of disputants, expert power, which comes from knowledge and expertise of the mediator, legitimate power that is founded on international law and legal authority, referent power that emantes from relationship between disputants and the mediator, and informational power, which is responsible for positioning the mediator as a bearer of message between the disputing parties. The power of mediation is the social power, which refers to relationships and resources that mediators carry to the dispute, and tactical strength which is what negotiators do within the negotiating table (Azad).
For mediation to be successful the disputing parties need to have equivalent or almost equal power, since imbalances in power tends to make mediation unfair hence litigation becomes a better option. It is possible to have power imbalances because no party can hold all the power sinceit is hard to quantify negotiation power or measure its application. Power extent is determined by subjective, crude, and non numerical appraisal while its assessment relies on forecast of what is likely to happen during the mediation, and this forecast is likely to have flaws (Azad).Therefore, it is better to focus on aptitudes of the disputing parties than their individual powers.
Disputing parties can have substantive power imbalance, which refers to their perceived bargaining power and weaknesses. These perceptions stem from factual and legal merits of their ideas, and conditions that could compel the other party to settle. Moreover, resources owned by one party could give them power over the other party (Dunlop). In this divorce case, both Steve and Melany were employed, with better incomes, and shared ownership of the house and mortgage hence reducing any possible power imbalance between them. Hence, Melany and Steve had a fair chance in the mediation process.
Impact of Third Party
Mediation offers procedures that assist the disputing parties to understand divorce topics that need to be addressed during the process agreement. Melany and Steve were educated on matters related to assets, liabilities, children, and cash flow issues. Mediators can be family law attorneys licensed to prepare all documentation required by the court (Eskiridge). For instance, Melany and Steve’s’ mediators prepared court documents and filed them to the court. They got their documents reviewed by financial analyst, insurance provider and individual attorneys, to offer input on what was necessary.
Impartiality of a mediator depends on the disputants’ perception. A Mediator is known as the third party in a settlement who is neutral and impartial and bears no authority in making decisions to help disputes among parties. Mediation pertains to two styles, low-power low-stake mediator and high-power high-stake mediator. They both advocate for impartiality, but differ in terms of their reasons for success (Eskiridge). In Melany and Steve divorce case, mediators applied low-power and low-stake style, where they guided the parties but left them to make the final the decision.
Speed and Cost of Mediation Procedure
Mediation is a flexible, cost effective, and speedy way of solving disputes. It is relatively quick in dispute resolution as compared to litigation. The most appropriate time to carry out mediation is usually before filing a lawsuit. Once mediation is closed, the disputers and the counsels draft a preliminary settlement agreement that addresses all terms of the settlement, and it is signed by everyone and a formal settlement is drafted later. In comparison, litigation is usually time consuming and parties are likely to spend years in a single case (Eskiridge). For instance, in the U.S. most divorce cases are set for trial a year after filing of the complaint.
Mediation is one of the economical processes of dispute resolution, though this depends on the mediators’ expertise, experience and popularity, and their charging rate. Usually, parties involved split mediators’ cost as a sign of investment of the parties in the case and their willingness to settle. Even though mediating costs are minimal in comparison to litigation, when parties decide to carry out mediation after filing of a law suit, they end up using more money on attorney’s fees, jury fees, court and report fees among other charges (Eskiridge). Hence mediation is a quicker and cost effective process as compared to litigation. For Melany and Steve case, the mediation took two months and paper work was filed in court after three weeks. This is a short period of time, as compared to litigation which takes at least one year.
Works Cited
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