Differences Between Negotiation And Mediation: Negotiation and mediation are two out of the other methods of alternative dissolution resolution (ADR). Disputes are indifferences that arise between two or more persons or group. Dispute is a reoccurring, continuous and inescapable incidence of human existence, hence the propagation and the resort to various methods of dispute resolution.
When we talk of dispute resolution in the society, the primary institution known to the law is the court and a tribunal set up for the same purpose. Litigation is the conduct of a lawsuit where there is a disagreement between two or more people and one or more of the parties to the dispute takes the case to court for resolution.
Every other method of dispute resolution not being litigation is an alternative method, and they include; arbitration, conciliation, mediation, negotiation, renegotiation, Mediation-Arbitration (MedArb), mini trial (mock), and so on.
Meaning of Negotiation
This is an alternative method of dispute resolution where the parties to a dispute work towards arriving at an agreement through discussions. Negotiation is conducted only by the parties to the dispute. Third parties are not involved. Negotiation is the most available alternative method of dispute resolution. It is a resolution by the parties and for themselves, and the method is commonly resorted to first by the parties who are willing to settle their difference even before they start to try out other methods.
In negotiation, parties to the dispute are expected and required to adjust their positions and compromise to a reasonable degree. Without adjustments and compromise, it seems that negotiation would be less fruitful. Negotiation is a very flexible method of dispute resolution.
This is because there is no third party interference and the parties to the dispute enjoy absolute control of the negotiation process. Negotiation has fewer formalities than every other alternative methods of dispute resolution. Interestingly, elements of negotiation can be found and employed amidst all other methods of dispute resolution.
Characteristics of Negotiation
1. No Third Party Involvement: Negotiation is an attempt to resolve existing dispute by the parties themselves or their representatives to the exclusion of every other person. A party who is not concerned in the existing dispute does not participate in the negotiation process. The moment a third party gets involved to control the process, it ceases to be negotiation but something else.
2. Confidentiality: because no third party is involved, the parties to the dispute are at liberty to conduct their negotiation privately and reserve the process and outcome to themselves alone.
Parties to a negotiation by this confidentiality would be free to discuss their disagreements and positions without nurturing the intruder feeling.
3. Negotiation is Voluntary: no party to a dispute can be compelled to participate in the negotiation process. Parties cannot by agreement impose negotiation on themselves, although they can do such for other alternative dispute resolution methods such as arbitration and mediation.
On the same vein, the law cannot impose negotiation on parties. To the same extent, parties to a negotiation are not bound by the outcome of the negotiation. Parties are also at liberty to withdraw from the negotiation process at any time they wish.
4. Flexibility: negotiation gives the parties to the dispute absolute control of the process of the negotiation. Moreso, parties to the dispute in negotiation may choose to represent themselves or be represented by another person, be it a lawyer, family member, next in command, etc.
5. Informalities: negotiation process is not guided by any prescribed rules and regulations. The law also does not interfere in a negotiation process; thus, there is not Act or state law regulating negotiation.
Meaning of Mediation
Mediation is an alternative method of dispute resolution which involves the use of negotiation conducted by a neutral or impartial third party known as the mediator to resolve differences between the parties. A mediator acts like an umpire or referee for the parties to the dispute though not in the strict sense. He participates in the dispute resolution process and tries to understand the positions of the parties and their indifferences.
A mediator is not to make decisions for or impose his decision, solution or opinion on the parties to the dispute; he rather tries to achieve a common ground on the existing conflict through discussions. A mediator must be an impartial and neutral party. During mediation, the mediator is at liberty to discuss with each of the parties to the dispute separately and jointly concerning the dispute in furtherance of the resolution.
The discussion done separately is known as caucus. Where mediation is successful, the parties to the dispute can draw up their terms of settlement in form of an agreement and it becomes contractually enforceable against them.
They can also refer their terms of settlement to the court for adoption as a consent judgment in their dispute, and upon adoption, it wears the garb of a court judgment.
Also see: Stages of Conflict Explained
Characteristics Of Mediation
1. Third Party Involvement: Mediation is characterized by third party involvement who must be a neutral party. In the absence of this neutral party, the parties would be doing some other thing not being mediation.
2. Voluntariness: Mediation is voluntary only to the extent that parties are at liberty to employ the method. However, where there is a binding agreement that upon the rise of dispute that mediation must first be resorted to, then such agreement is binding and there is a contractual liability for its breach.
3. Solutions cannot be imposed by the mediator: The mediator cannot impose his decision, solution or opinion on the parties to the dispute.
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4. Flexibility: Notwithstanding that there is a neutral party (the mediator) involved in the mediation process, the parties to the dispute still enjoys flexibility. They still reserve their control over the dispute resolution process. They are also the ones to choose their mediator and all the parties must agree and accept a person so appointed to act in that capacity.
5. Binding extent of the Mediation Outcome: The outcome of mediation is only binding when the parties have drawn up their terms of settlement in form of agreement or have adopted same in court as a consent judgment.
6. Informal: The setting for mediation is also less formal than that of arbitration and litigation.
Differences Between Negotiation And Mediation
1. For negotiation, the parties to the dispute or their representative are the ones involved in the negotiation process. The parties are therefore the negotiators by and for themselves. On the other hand, mediation involves a third person (a mediator) who must be neutral and impartial. The mediator is the one who walk the parties towards solutions to their dispute but does not and cannot impose his solution on them.
2. Negotiation is arguably a matter of choice. Parties to a dispute cannot be compelled to negotiate and arrive at a settlement. Practically speaking, parties cannot by agreement or by operatio of law be forced to conduct or participate in negotiation. Negotiation can only go on if the parties are willing. Therefore, any party is at liberty to opt out from an ongoing negotiation without any liability.
On the other hand, parties can by agreement or by operation of law be compelled to conduct and participate in a mediation process. Where there is an agreement between the parties to the effect that mediation must first be resorted to upon the rise of dispute, failure to comply with such agreement is a contractual breach from which liability arises. Therefore, willingness or unwillingness of the parties to participate in mediation may be immaterial.
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3. In negotiation, parties to the dispute or their representatives meet to see if they can arrive at common grounds in respect of their differences. For mediation however, it is the neutral party (the mediator) who meets with the parties to the dispute to find their common grounds. He can meet them jointly and or separately.
4. Parties to a negotiation adjust their positions and proffer solutions for themselves, whereas for mediation, the mediator proffers solutions although he cannot impose them on the parties.
Alternative dispute resolutions are effective methods of dispute resolution, although sadly, some of the disputes subjected to ADR may still end up in court for one reason or the other. Alternative Dispute Resolution is only employed in civil litigations and certain subject matters such as tax cannot be referred to Alternative Dispute Resolution. Negotiations and mediation, the differences regardless, their purpose and destination remains the same but slightly differs in procedure and content.
Edeh Samuel Chukwuemeka ACMC, is a Law Student and a Certified Mediator/Conciliator in Nigeria. He is also a Developer with knowledge in HTML, CSS, JS, PHP and React Native. Samuel is bent on changing the legal profession by building Web and Mobile Apps that will make legal research a lot easier.