Law

Negotiation is a mutual, consensual, voluntary, procedure followed in generating solutions for disputes. It is designed in such a way as to facilitate discussion between two conflicting parties. Due to the fact that no neutral third party is involved, the conflicting parties have to establish their own process as well as the rules to follow, and also find a solution for their own conflicts. However, the rules of negotiation remain unstated, but are completely established in the due course of negotiation. Failure of the parties to generate a solution to a particular problem means that the conflict will remain and the parties have to consider another methodology for resolution. Negotiation however is not limited to generating solutions to conflicts (Atlas, Huber and Trachte-Huber, 2000). When two conflicting parties decide to employ negotiations to settle their disputes, they become integrated in a process, which will require compromise.  It is very rare that a party will be given everything heshe wants, and it is also very rare that a party will give everything that the other side demands. The first step in preparing for negotiation is to evaluate the dispute. In this step, the conflicts are clearly defined, facts looked into, and as well the law is researched. Other factors that are looked into in this step are the facts applied to the law, legitimate and non-legitimate issues, probable solutions, as well as the interest of both parties. Immediately after the legal issues have been looked into non-legal issues are then evaluated. Hartley (2002), states that even though a dispute may involve a non-legal instead of a legal issue, this does not reduce the intensity of the dispute. However, in that case, the procedures for conflict resolution will be limited. A plan of action is also laid down if the conflict cannot be resolved through negotiation (Atlas, Huber and Trachte-Huber, 2000). Negotiation, as a dispute resolution process, has both advantages and disadvantages. One disadvantage is that an active participation of both parties is required for negotiation to take place. There can be no negotiations if the conflicting parties fail to cooperate. The decision to negotiate is inclined on the interests as well as the needs of the conflicting parties and not on the law. However, negotiation offers the conflicting parties with unlimited flexibility. They can design their own timetable without the fear of breaking laid down regulations. They can set up the rules as well as procedures for the negotiation process. Conflicting parties can negotiate themselves through lawyers (Hartley, 2002). Negotiations are easy to begin and a decision can be made at the end of the process. Resolutions comprise of some of the needs as well as interests of the conflicting parties. It is a cost effective process since it eliminates filing charges. The conflicting parties are free to end the negotiation if they feel that their interests are not considered. The conflicting parties, on selecting negotiation, weigh the need to generate a solution for a particular disagreement now against a probable outcome if the disagreement is dissolved at a later date. The conflicting parties devote all their efforts to resolving a dispute now in order to put the disagreement behind them and move on. The parties have full control of the process. The decision or the consent of a third party is not required in negotiation (Atlas, Huber and Trachte-Huber, 2000).

In negotiations paralegals do not have an active role in the process. Their role is to assist the attorney. Paralegals also referred to as legal assistants, undertake a variety of tasks and responsibilities that an attorney would normally perform. These activities range from giving legal guidance and setting fees to acting as counsel in the courtroom. Paralegals may take part in the investigations of certain aspects of a case. They help track down all vital information of a case. They assist attorneys prepare for a trial as well as hearings. One of the major obligations of paralegals is to prepare written reports which lawyers refer to when devising legitimate strategies for handling a case (Brittain and Hull, 2002).

Mediation, on the other hand, is a consensual process. Mediation is mainly employed by parties who contract. It may be included as a term in a contract. If a dispute occurs out of the contract, the parties are only required to apply the provisions of the contract. However, if the conflict does not occur out of the contract, and mediation was not included as a term in the contract, the parties may consider private mediation (Arnavas, 2004). Private mediation is usually selected before proceedings are started. If parties, through mediation, resolve their conflicts, litigation is not pursued. Nevertheless, if a solution is not generated out of mediation, legal action may then be pursued. In case mediation has not been selected as a resolution process, one of the conflicting parties may pursue legal action with intent of bringing a reluctant party to mediation table. This in turn opens a variety of channels for conflict resolution, each of which progresses along its own schedule. If a solution is generated through mediation, the conflicting parties will terminate the legal action through filing motions to dismiss with prejudice. Both parties are required to play an active role in mediation process. Mediation is very different from negotiation which just occurs (Atlas, Huber and Trachte-Huber, 2000). The actual consent of the conflicting parties is required if a decision to mediate is to be made. Mediation also requires proper planning because a neutral third party is required in the process. The role of the neutral third party is to facilitate the discussion between the conflicting parties. The main objective of mediation is resolving a particular dispute, but if the parties are unable to reach a conclusion, their conflict will remain unresolved and another conflict resolution process may be sought. In mediation, the conflicting parties just like negotiation, are required to give a full description of their dispute. They are also required to state their interests as well as listen to the needs and interests of the other party. They should also be prepared to set up a rational way of resolving their disagreement (Atlas, Huber and Trachte-Huber, 2000).

The first step in preparing for mediation is to establish the rules for the whole process as well as selecting a neutral third party. Both parties must be comfortable with the rules, procedures as well as the mediator (Hartley, 2002). The parties may establish the rules by themselves or the mediator may set up the rules for them. The second step in mediation is establishing the timing as well as the setting for the process. Timing depends on a variety of factors including presence of an attorney, availability of the mediator, and the magnitude of the disagreement. The other step is preparing the participants for their obligations in the resolution process. Legal evidence as well as supporting documents is of limited significance in mediation due to the fact that the conflicting parties are trying to find a solution for their own problems through the help of a mediator. Documents may nevertheless be used to assist the other party get to know the merits or lack of merit of a particular stance (Hartley, 2002). The actual mediation process involves the mediators opening comments, which introduce the conflicting parties to the mediation table the opening statements of the conflicting parties the assistance of the mediator to reaching a rational conclusion and finalizing of the agreement with the help of the mediator. A binding agreement is made in mediation process. The role of paralegals in mediation process is to manage the documents in a case, put down the proceedings, communicate and talk about legal strategies with the attorney. Paralegals also interface with the clients. Paralegals however, do not represent or counsel a client (Brittain and Hull, 2002).

There are advantages and disadvantages associated with mediation. One main disadvantage of mediation is that the whole process is based on individual and business factors and not on the law. Mediation does not guarantee that a solution will be generated at the end of the process. However, mediation offers the conflicting parties with unlimited flexibility. They choose the mediator set their own timetable determine the compensation of the mediator and the location of the mediation talks and also determine the way through which the mediation process will be conducted. Creativity of the conflicting parties is not limited by law in mediation (Hartley, 2002).

Arbitration, a conventionally private alternative dispute resolution process, is presently employed in court setting after a litigation process has been commenced.  The earliest court ordered arbitration took place in 1978 when the Eastern District of Pennsylvania and Northern District of California began their own operations (Kramer, 1998). Court annexed arbitration offers the conflicting parties with a condensed bench-type trial. The stringent federal rules of evidence are relaxed in court annexed arbitrations. Private arbitration is voluntary whereas court annexed arbitrations are obligatory. The conflicting parties have to settle on arbitration as their dispute resolution process. They then establish the rules for the arbitration and select an arbitrator. Even though the conflicting parties may decide to regard arbitration as nonbinding, private arbitration is binding. The decision of the arbitrator is final and cannot be appealed even though there is a limited opening for legal assessment. Court annexed arbitrations, on the contrary, are nonbinding (Kramer, 1998). Un-contented party may disregard the awards of an arbitrator and seek trial de novo from the court. Failure to file a trial de novo within a specified period of time makes the arbitrators awards binding. The actual process of court annexed arbitration involves filling a complaint, referring the case to arbitration, pretrial discovery, pre-hearing of statements, hearing the arbitration, arbitrators awards, and finally a chance for trial de novo. Arbitration hearing comprises of a variety of events which include convening of the arbitration by the arbitrator, introduction of all parties, presentation of a procedural overview of the process by the arbitrator, opening statement by the plaintiffs counsel, opening statement by the defendants counsel, presentation of plaintiffs evidence, cross examination of plaintiffs evidence by the defendants counsel, presentation of defendants evidence, cross examination of defendants evidence by the plaintiffs counsel, closing argument by the plaintiffs counsel, closing argument by the defendants counsel, adjournment of the arbitration hearing by the arbitrator, and finally issuing of the arbitration awards by the arbitrator. The role of paralegals in arbitration as a ADR is to carry out the discovery for a court annexed arbitration if the complainant has not been filed paralegals are supposed to be present at the arbitration hearing. Paralegals assist an attorney in a similar manner to when a case is presented before a judge rather than an arbitrator. They prepare reports and assist their attorneys manage these reports as presentation of evidence is made (Brittain and Hull, 2002).

Court annexed arbitration has a number of advantages as well as disadvantages associated with it. As an advantage, it offers the conflicting parties with a cost efficient alternative to conventional courtroom. It also relieves the courts of the heavy burden of the ever increasing caseload. They are timelier as compared to full trial. Through elimination of discovery deadlines, arbitrations ensure that hearing takes place within the shortest period possible (Fiadjoe, 2004). Arbitrations obviate many live witnesses as well as formality required in court proceedings, an aspect that reduces the time taken to generate a conclusion. Arbitration eliminates the need by arbitrators to shift focus between different matters on their calendars, and thus focus on the case being arbitrated. Arbitration saves a lot of time and do not require scheduling in large courtrooms. Disadvantages associated with arbitrations emanate from the fact that in case an arbitrators awards are disregarded and a trial de novo considered, the total costs exceed the normal litigation costs. Another disadvantage is that a third party is required to resolve the disagreements. The conflicting parties may regard the arbitrators awards as less authoritative because heshe do not make judicial decisions daily (Kramer, 1998).