Compare and contrast the positives and negatives of Negotiation and Litigation.

Posted: July 18th, 2022

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As a society we are exposed through television and movies to the primary means of resolving disputes in our legal system: litigation.  Because there is so much history and foundation through the history of the towns, cities, states and federal government, the general society falsely believes that being in a courtroom is the only legal means to resolve differences between disputants that is honored by both parties.
No where within the U.S. Constitution or any other document created on any local or state level does it state that the only means for disputants to resolve their differences is in a courtroom.  Such legal documents do state guaranteed rights for citizens, including a trial by jury of peers, due process, etc.  But these rights are of greater value in criminal proceedings.
As courts have become increasingly overcrowded with disputes to be resolved, alternative means have become more attractive, each with distinct advantages not just to litigation, but between each other.  Most importantly for the student is this take-away: when agreed upon by each of the parties to a dispute, the ADR method affords the same constitutional guarantees as being in a courtroom.  The ADR method is just a different forum for the dispute to be heard, and depending upon the agreement of the parties to the rules for that particular ADR, is as legally binding as a courtroom decision.
Though there are various methods of ADR discussed within the Coltri textbook, we will concentrate our efforts on two particular forms of ADR: Mediation and Arbitration.  It is entirely possible that within your professional career you may come upon another form of ADR, but these two are the most popular and used.
As you respond to each of the six questions below, please be aware that you do not “cut-and-paste” the language from the textbook directly.  Futher, though the immediate information may be within the heading of the particular area discussed, there is greater detail provided later in the chapter for each of the questions, so please be aware that your response should be comprehensive and in your own words.
1. Compare and contrast the positives and negatives of Negotiation and Litigation.
2. What is a Mediation?  Why use this form of ADR instead of negotiation or litigation as a means to resolve differences between parties?
3. Discuss who resolves a mediation and comes to a decision for the parties.
4. Compare and contrast Facilitative Mediation and Evaluative Mediation.  Is one process better than the other in resolving differences between the parties?
5. Compare and contrast Triage Mediation, Bargaining-based Mediation, Pure Mediation, Transformative Mediation, and Narrative Mediation.  What are the advantage(s) of each?  Are there any disadvantage(s) of each?
6. Discuss and explain (advantage(s), disadvantage(s) to be concerned about, etc.) which form of Mediation you would want to use if involved in a dispute.

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