What is the neutral third party role that decides what the settlement shall be when the parties are at a deadlock?

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Learning Outcomes
Arbitrators
Conciliators
Consultants
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Mediation is a form of alternative dispute resolution which is voluntary but actively encouraged by the courts throughout the litigation process. It has become increasingly important in recent years as it allows parties to remain in control and to settle their disputes cost effectively and confidentially on a without prejudice basis.

Mediation begins with parties to a dispute agreeing to mediate, setting ground rules and selecting a mediator. The mediation then involves parties trying to understand what is important to each side, clarifying what is negotiatable, exchanging information and identifying and exploring possible solutions. At the end of a successful mediation, parties will put their solutions and agreement down on paper.

The mediator selected by the parties should be a neutral third person who will be able to assist the parties in negotiating a settlement to their dispute. The mediator’s role is to facilitate discussion between the parties by helping them to explore their respective positions and to identify possible solutions. In facilitating discussion the mediator will emphasise the rules and the process and will offer parties the opportunity to speak with him separately should this be desired. Ultimately it is the parties themselves who decide whether to settle and, if so, on what terms.

At Expert Evidence we are experienced in providing mediation services, recently successfully mediating a dispute over hire purchase agreements for commercial vehicles. We are able to supply a CEDR Accredited Mediator to act on disputes in a wide range of sectors, and we are also able to offer our financial experts to act as witnesses, advisers or consultants to aid the mediation process in appropriate cases.

Articles on Mediation

Mediation is a structured approach to dispute resolution that has specific phases. They are as follows:

1. The Initial Stage – Permission of both parties to mediate – Making sure that both parties are willing to make process work. – Selecting the mediator – Agreeing the ground rules – Agreeing who will attend – Both parties agreeing to mediation agreement – Paying the fee

– Initial discussions with the mediator

2. Opening – Mediator emphasises the rules and process – Provided own room to discuss in absolute confidence

– Meeting of parties and opportunity to summarise position in open forum.

3. Exploration – Understanding what is important to each side – Clarifying what is negotiable. – Exchanging Information – Discussion of what is important (on own, with mediator and with other side when appropriate. – Identifying possible solutions.

– Building trust between parties and the mediator.

4. Bargaining Phase – Exploration of possible solutions. – Testing what is important. – Dividing the issues into their material parts

– Overcoming any deadlock

5. Concluding Phase – Finding solution. – Putting solution and agreement down on paper – Making sure that all parties are satisfied. – Ensure that all points are covered.

– Find a solution to any future relationship between parties if necessary.

And always remember the whole process is entirely voluntary, confidential and without prejudice.

Mediation is a structured approach that has significant advanages over other forms of Dispute Resolution.

They include: – Party remain in control at all times. – No imposed decision. – All entirely voluntary – Process is entirely confidential. – Everything is without Prejudice – no solution then there is no need to consider the compromises are then committed to.

– A court, if it comes to litigation, will look favourably on parties which were prepared to mediate.

Thomas Walford

Jonathan Pitman

Mediation and arbitration both involve finding a resolution to a dispute (usually over the interpretation or application of a written contract) and involve a third party (an arbitrator or mediator). However, the method by which resolution is reached is completely different in arbitration and mediation.

In mediation the parties (employer and union or other employee representative) to a labor-management dispute mutually select an impartial third party to help them reach agreement over a disputed issue or issues. The role of the mediator is to listen to the positions and interests of both parties, to make suggestions for resolution if appropriate, and to help them reach an agreement to which they can both commit. Mediation may be voluntary or imposed by state or federal legislation. The mediator has no authority to force the parties to come to an agreement and cannot impose his or her version of a good resolution upon them. Any suggestion he or she makes about what would be the “best” solution for the dispute is not binding upon the parties.

In arbitration the parties mutually select an impartial party to hear both parties’ positions and arguments, consider live witness (oral) testimony and documentary evidence if offered, and write an opinion and award resolving the issue in question. The parties to arbitration generally agree in advance that the resulting award will be final and binding upon them. Most collective bargaining agreements contain a specific provision that addresses the arbitration of disputes. Sometimes an arbitrator will try to mediate a dispute prior to moving to arbitration. In such circumstances he or she tries to get the parties to resolve the dispute on their own without having a decision imposed upon them.

Learning Outcomes

Discuss third-party negotiations

For every negotiation that goes well, there is one that crashes and burns. In the last section, we talked about some of the ways a negotiation can go wrong—one of the parties might have an abrasive personality, might be from a different culture, or even be unethical. Or perhaps there seems to be no resolution that will satisfy all parties. Whatever the reason you’re stalled in the negotiation process, you should know that help is available: it’s called the third-party negotiator.

If you’re surprised that such a “job” as third-party negotiator exists, you’ll be even more surprised to find out that they’re pretty common. A judge, a lawyer, and even an agent for a movie star is a third-party negotiator. Anyone who negotiates on your behalf or listens to your pleas and then decides your fate fits into the third-party negotiator role.

There are four basic third-party negotiator roles: arbitrator, conciliator, consultant, and mediator. Each of these third-party negotiator roles provides a specific service for the parties who have employed him or her, and their services are often situation-dependent. Let’s take a look at each role and how it functions.

Arbitrators

An arbitrator is a third party with the authority to dictate agreement. Arbitration can be voluntary or forced on the parties of a negotiation by law or contract. The arbitrator’s power varies according to the rules set by the negotiators. He might be limited to choosing one of the party’s offers and enforcing it, or he may be able to freely suggest other solutions. In arbitration, there is always settlement.

Often used in the U.S. legal system, an arbitrator is used in lieu of a judge (though, technically, a judge is also an arbitrator!). If two people are, for example, involved in a car accident, they might agree to use an arbitrator in order to determine a fair amount of repayment for damages caused. In entering into the arbitrator situation, both parties agree to let that person make the final decision.

Conciliators

A conciliator is a trusted third party who provides communication between the negotiating parties. This approach is used frequently in international, labor, family and community disputes, and, if you’re a fan of The Godfather movies, it’s the role that Robert Duvall’s character played for the Corleone family. Conciliators often engage in fact finding, interpreting messages, and persuading parties to develop an agreement.

Very often conciliators act only as a communication conduit between the parties and don’t actually perform any specific negotiation duties.

Consultants

A consultant is a third-party negotiator who is skilled in conflict management and can add their knowledge and skill to the mix to help the negotiating parties arrive at a conclusion. A consultant will help parties learn to understand and work with each other, so this approach has a longer-term focus to build bridges between the conflicting parties.

A real estate agent is an excellent example of a third-party negotiator who is considered a consultant. People who are looking to buy a house might not understand the ins and outs of earnest money deposit, title insurance and document fees. A real estate agent will not only explain all of that, but prepare the purchase agreement and make the offer on behalf of their client.

Mediators

Finally, a mediator is a neutral, third party who helps facilitate a negotiated solution. The mediator may use reasoning and persuasion, they may suggest alternatives. Parties using a mediator must be motivated to settle the issue, or mediation will not work. Mediation differs from arbitration in that there is not a guaranteed settlement.

Mediators are most commonly found as third-party negotiators for labor disputes. If a labor union and a company come together to discuss contract terms, a mediator may be employed to assist in ironing out all the issues that need extra attention—like vacation days and percentage of raise.

All negotiations are going to experience issues and obstacles, and how you handle them is going to dictate your success. Every negotiation is different—it’s why applying one particular strategy to a negotiation can be so complicated—but continued practice and awareness of the issues that will trip you up are a good start toward a successful negotiation meeting.