Mediation vs. Arbitration: Effective Alternative Dispute Resolution Methods in Business, Study notes of Marketing Business-to-business (B2B)

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Mediation vs. Arbitration Ivanna Robles College of Southern Nevada Business 101 Belinda Robinson May 05, 2022

Mediation vs. Arbitration The workplace is one of the most conducive places for conflicts to occur between an organized union and the management of a firm. It is known that each person has different qualities and beliefs that differ from the ideas of others. Both workers and managers must reach an agreement through good negotiation and communication, seeking to resolve the conflicts they encounter in a peaceful manner and that the intervening parties are satisfied with the decisions. Nevertheless, "The existence of business contracts, for example, does not remove the possibility of lawsuits over failing to meet contractual obligations". Therefore, maintaining order and a good working environment is important to manage the conflicts that a company may go through. Alternative Dispute Resolution (ADR) refers to a set of dispute processing methods, mainly arbitration, and mediation (Rouméas, 2020). To begin with, mediation is the use of a third party, commonly called the mediator, who encourages both sides in a dispute to continue negotiating and often makes suggestions for resolving the matter (Nickels et al., 2021). In other words, mediation refers to intercession or intervention and interposition of a neutral. (Attaullah, Q & Saquib, L, 2017). All types of businesses are now adopting mediation as a way of resolving conflicts. Besides, an advantage of using mediation as part of a conflict management program is that it takes less time than litigation and arbitration, it is cheaper and for small businesses, the results can be really important. A striking example of mediation can be seen in a Patent Licensing Dispute. In the context of a consulting contract, a technology consulting firm with patents on three continents disclosed a patented invention to a major manufacturer. The manufacturer's rights were neither transferred nor licensed under the contract. Therefore, when the manufacturer began selling products that the consulting firm claimed contained the patented invention, the consulting firm threatened to launch patent infringement lawsuits in all jurisdictions where

expedited arbitration complaint, alleging that the coexistence agreement had been violated. Consequently, a European trademark specialist was designated as the sole arbitrator after negotiations between the parties and the Center. The arbitrator had a one-day hearing in Munich (Germany) following two rounds of pleadings and delivered an award six months after the proceedings began. As a result, the arbitrator found partial infringement of the coexistence agreement and awarded the primary remedy sought, ordering the European corporation to stop infringing. ( WIPO Arbitration Case Examples , n.d.) Businesses choose arbitration or mediation for resolving disputes between members of the company. The differences between these two methods of ADR are clear. In mediation, a qualified mediator attempts to reach an agreement between the parties involved. However, in arbitration, the parties present their disagreement to a third party seeking resolution. For instance, when trying to resolve a dispute, the mediator will try to address the problem and bring a solution that satisfies both parties. In contrast, the arbitrator will hear both members and make a decision that will lend to a final verdict on the dispute. Besides, in mediation, unlike arbitration, either party can withdraw at any time. For arbitration, though, there is usually no way to leave once it starts. (Jean Murray, 2020). To sum up, arbitration and mediation are effective ways to deal with working matters. These two methods of the Alternative Dispute Resolution help bring the employees and businesses back together. The key advantages they both have over a trial are time and cost savings, as well as the outcome certainty. Nevertheless, there are also drawbacks to adopting mediation and arbitration as a conflict resolution method, since parties may struggle to find a mediator or arbitrator with whom they are truly confident will be neutral or impartial.

References ATTAULLAH, Q., & SAQIB, L. (2017). Mediation: Application and functioning under Shari‘ah and law. Islamic Studies, 56(3-4), 245. Retrieved from http://ezproxy.library.csn.edu/login?url=https://www.proquest.com/scholarly- journals/mediation-application-functioning-under-shari-ah/docview/2368071393/se- 2?accountid= Brachotte, S. (2021). The limits of arbitration law in addressing cultural diversity: The example of ismaili arbitration in the united kingdom. Laws, 10(2), 47. doi:http://dx.doi.org/10.3390/laws Nickels, W. G., McHugh, J. M., & McHugh, S. M. (2021). Understanding Business. McGraw-Hill Education. Rouméas Élise. (2020). Religious diversity in the workplace: The case for alternative dispute resolution. Political Studies, 68 (1), 207-223. doi:http://dx.doi.org/10.1177/ WIPO Arbitration Case Examples. (n.d.). World Intellectual Property Organization. https://www.wipo.int/amc/en/arbitration/case-example.html? fbclid=IwAR13yPtmC2swAjl3QBIWPcWrysGLxxQSvVQQLPFYoII4htfqYWm74tn UmvA WIPO Mediation Case Examples. (n.d.). World Intellectual Property Organization. https://www.wipo.int/amc/en/mediation/case-example.html? fbclid=IwAR2urdw7HoeB9aNEPDh1doCy8r1k91Yp1jqsG61bl3jyg7- 6jMA1FoGpXvI