A Research Plan Based on Arbitration or Mediation
Introduction
Alternative Dispute Resolution (ADR) has gradually emerged as a preferable avenue for conflict resolution over the years. ADR is the act of resolving conflict outside of the formal rule of law or the law courts (Law Firms)). The preference has come from the fact that clients have more control over the process and the outcome of the process of conflict resolution, and that ADR is more cost-effective compared to litigation or court proceedings. Court cases involve lawyers who charge by the hour and have the judge deciding on the outcome of the matter. Mediation is one of the channels of ADR, and it can be used in resolving various forms of conflict, including family feuds, conflict in the workplace, or public disputes, to mention a few. Other channels of ADR include arbitration, conciliation, and negotiation (Rodriguez, 2011). In mediation, the two conflicting parties seek an independent and impartial third party to preside over the mediation process, without exerting any decisions on the parties or the process. The two parties decide on the rules of engagement all through the process, and the mediator only guides them to smoothen the process and push it along (Burns, 2001). The ultimate decision or outcome has to be agreeable to both parties.
Mediation has the advantage of cost-effectiveness and the aspect of control over the process. Another advantage of mediation is the confidentiality of the process (Law Firms). Court proceedings usually bring publicity to different conflict cases, which may be harmful to the parties involved in one way or another. This harm is especially evident in sensitive matters such as those of sexual harassment or sexual violence. Mediationsictallows the conflict to be addressed out of the eye of the public, thereby protecting victims of such cases. Therefore, mediation, as a form of ADR, is preferable for most conflicts.
Research problem
As earlier stated, mediation involves the conflicting parties hiring a third party to oversee the process in terms of guidance only. However, the rules of engagement in mediation stipulate that the mediator cannot support any side of the dispute. The implication here is that the mediator cannot influence the parties in their decision-making in any way, such as by offering them legal advice (Bagshaw, 2015). It follows that even if one of the parties is going down the wrong path that could foster a situation of shortchanging by the other party, the mediator is in no position to bring it to the attention of the shortchanged party. As long as this party agrees to the decision, then there is nothing that the mediator can do.
Besides, if any of the conflicting parties want to involve a lawyer in the process, the party has to consult the opponent and gain approval (Burns, 2001). However, this may be a problem because one of the conflicting parties may not be in a position to hire a lawyer, such as because of financial constraints. Notably, one of the reasons why people opt for mediation or any other ADR mechanism is because of the lower costs that come from the option of eliminating lawyers from the dispute resolution process. Therefore, it becomes an issue of lacking professional legal advice for the parties (Burns, 2001). This situation also contributes to the possibility of one of the parties being shortchanged without realizing it. Therefore much as the ultimate decision of the process is agreeable to both parties, one of the parties may come out ahead of the other or may benefit more at the expense of the other party (Bagshaw 2015). Therefore, the absence of legal advice that causes unjust decisions or agreements is a problem in mediation.
Another issue that comes from the mediation has to do with ethical considerations. Mainly, truthfulness and transparency are vital to the process. The success of this process, and its coming to a decision that benefits both parties, is completely reliant on the truthfulness and transparency of the parties regarding any background information of relevance to the conflict (Lindgren et al., 2010). It has emerged that some parties conceal some information for purposes of emerging as the winner in the process. If it were formal legal proceedings in the law courts, the presence of lawyers would compel the parties to be truthful and transparent in information sharing, because the lawyers conduct thorough research on the matter. Any revelation that any of the parties lied in their statements attracts tough penalties to the subject party (Rodriguez, 2011). Therefore, there are higher chances of truthfulness and transparency in court proceedings. This factor makes the ultimate decision more just to the situation as per the facts. Therefore ethical violation is a problem in mediation.
The importance of research
Most people opt for mediation due to its benefits, such as confidentiality, lower costs, and control over the process and the resultant decision. However, most people are unaware of the risks that they take when going into this process. The parties may go into the process, trusting that the other party will have goodwill and will be truthful and transparent all through the process. This is not always the case. The result is that one party may be morally upright and be truthful and transparent in information sharing, whereas the other party violates such ethics (Bagshaw, 2015). The result is that the violating party will benefit more from the process. The benefit is because the decision is made based on the information that has been shared by the parties.
This study is important because it will shed light on some of the challenges that face the mediation process of conflict resolution. By so doing, any parties that go into this process to resolve their conflict will be informed of the possible risks that they face, and prepare accordingly (Law Firms). For instance, the involved parties could ensure to have all the information they might need on the opponents before going into the process so that there is no possibility of the opponent concealing any relevant or important information. Additionally, being informed of all the legal bases that cover the conflict can help the involved parties to know their legal rights and restrictions, despite not being in a formal court (Bagshaw, 2015). This way, the participants will ensure that the ultimate decision does not put them at a disadvantage in any way, but it a mutually beneficial outcome. This aspect is especially important because the resulting decision of the mediation process is legally binding, and both parties have to abide by the ruling. Therefore, this decision must be just and mutually beneficial.
Research limits (spatial limits, temporal limits)
Spatial limitations: Mediation as a mechanism of alternative dispute resolution has the benefit of confidentiality of the process and the individuals involved. The implication here is that the involved parties are not at liberty to discuss the conflict or the process of resolving the conflict with anyone other than the involved parties. As such, getting any documented information on the processes using real case examples is difficult. Consequently, the study will be limited to only studying mediation though the individual narration from people who have engaged in mediation before. These individuals would have to be willing to discuss their case with the researcher. The researcher will visit organizations mainly, to seek such individuals. It might be difficult to get a sizeable sample size to give a clear pattern of these challenges, because not every person might be willing to discuss their case. For instance, the cases might have been sensitive for either the workers or the company, making it a problem for either of them to discuss it. Alternatively, the employees could be obliged by their employers not to discuss the case with any other parties, after its settlement. With such factors, the resulting sample size from the parties willing to discuss their cases could be too small to make generalizations about trends in the process of mediation.
Temporal limits: Parties involved in the mediation process, along with the mediator, have to maintain the confidence of the process. Notably, this privacy and confidentiality requirement serves to ensure that the public does not interfere with the process. Public opinion has been known to sway the direction of various cases and may cause injustice to some parties involved in the case. Therefore, the involved parties can opt to talk about their case once they agree. To this end, it might be possible to find respondents to participate in the study once their conflict has been resolved.
Research method
This study will take a descriptive approach, in that it will seek to describe the study phenomena’s characteristics. This kind of research aims to address ‘what’ questions. In this case, the study is trying to establish a trend in some of the characteristics of mediation. The study will mainly focus on the negative attributes for the knowledge of the public (Groh, 2018). This way, the public will be prepared for the process to avoid the possibilities of an undesired or unjust outcome.
The study will also employ both a qualitative and quantitative approach because it will deal with both qualitative and quantitative data. Qualitative data is immeasurable data, whereas quantitative data is quantifiable or measurable. The responses from the participants in terms of their experiences will be qualitative (Groh, 2018). On the other hand, the analysis of the frequency of specific responses, for instance, will be quantitative.
Data collection will utilize the primary method, which is used for collecting primary data. Notably, as earlier stated, mediation does not allow any record keeping. Therefore, any information regarding different mediation processes will have to come directly from the participants in the process (primary data). For primary data, the study will use structured interviews and structured questionnaires (Groh, 2018). The questions on both of the data collection tools will be open-ended to allow a broader range of answers that will shed more light on the process. Notably, the respondents will not be required to submit their names or the names of the party they conflicted with (Groh, 2018). This idea will help in encouraging the respondents to share as much information as possible without fear of being victimized.
In data analysis, the study will utilize the Likert scale for the non-quantifiable data. On the other hand, the statistics package for social sciences (SPSS) software will be used to analyze the quantifiable data.
The contents of the research (chapters, chapters, analysis and results
In the first chapter, the study will start with an introduction to alternative dispute resolution, with a specific concentration on the mediation process in the first section. It will outline the benefits of the process, followed by its challenges. The next section will discuss the problems arising from the difficulties of the process, followed by a statement of the purpose of the study based on the presented issue. An account of the research questions will follow, and then a listing of the research objectives.
The second chapter will be a literature review of the process of mediation as a whole. It will also discuss the challenges that the process presents to the process of conflict resolution. A conceptual or theoretical framework will follow this literature review. In this framework, the researcher will propose a theory for why the conflicting parties may choose to act in a certain way that will compromise the effectiveness of the mediation process.
The third chapter will be a description of the methodology used. The chapter will start by describing the research design (descriptive with qualitative and quantitative approaches), then the sampling method used for sample selection, then the data collection procedure (structured interviews and questionnaires), and finally, the methods of analyzing the collected data (Likert scales and SPSS).
The fourth chapter will be on data analysis and results, and the final chapter on conclusions and recommendations.
References
Bagshaw, D. (2015). Mediation in the world today: opportunities and challenges. Journal of Mediation and Applied Conflict Analysis, 2(1). Retrieved from http://mural.maynoothuniversity.ie/5833/7/DB-Mediation-2015.pdf
Burns, R. P. (2001). Some ethical issues surrounding mediation. Fordham Law Review, 70(3). Retrieved from https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3769&context=flr
Groh, A. (2018). Research methods in indigenous contexts. New York: Springer
Law Firms. Mediation Disadvantages. https://www.lawfirms.com/resources/lawsuits-and-disputes/mediation/mediation-disadvantages.htm
Lindgren, M., Wallensteen, P., and Grusell, H. (2010). Meeting the new challenges to international mediation. N.p. Retrieved from https://www.pcr.uu.se/digitalAssets/667/c_667482-l_1-k_ucdp_paper_6.pdf
Rodriguez, R. M. (2011). Essays in mediation and arbitration. Lulu Press. Retrieved from https://www.researchgate.net/profile/Roberto_Rodriguez3/publication/215827837_Essays_in_Mediation_and_Arbitration/links/559878a108ae99aa62ca29f5/Essays-in-Mediation-and-Arbitration?origin=publication_detail