Sample Business Law Paper on Distributive Bargaining and Mediation

Introduction

Dispute resolution takes into consideration the various processes used in resolving
disputes between conflicting parties (Campbell 2010). Disputes usually arise in any ideal work
setting. They typically occur when two or more parties disagree on something, making matters to
remain unsolved. Taking this into consideration, dispute resolution mechanisms are crucial for
any organization. Effective dispute resolution mechanisms can significantly help workers when it
comes to maintaining healthy relations with their seniors. This is through handling workplace
issues at early stages. In most cases, employees become more productive and cooperative when
they are assured that their grievances are taken care of (Berger 2006). A good dispute resolution
mechanism should focus on effective solution. This is because it can substantially help in
avoiding costs of resolving the conflicts externally (Taylor 2002). Taking this into consideration,
this paper focuses on the two methods of resolving conflicts; distributive bargaining and
mediation. On this, it focuses on the differences between these two methods, their advantages and
disadvantages, and situations in which they are applied.

Difference between Mediation and Distributive Bargaining
Mediation is one of the methods of dispute resolution where a third party, who is neutral,
assists the conflicting parties in reaching to a voluntary resolution (Doherty & Guyler 2008). The
process of mediation is usually confidential, informal, and flexible. In this process, the mediator
assists the conflicting parties in understanding the interests of all the people involved. This is also
entails taking into consideration their legal and practical choices. The mediator plays the role of
assisting the conflicting parties communicate better, explore practical and legal settlement
options, and reach an acceptable solution of the dispute. Usually, the mediator does not help in

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deciding the solution of the dispute. Instead, the parties are the ones that do that. In most
situations, mediation usually results in a legally enforceable contract which is agreed upon by the
conflicting parties. This is usually done in writing (Strasser & Randolph 2004). Mediators are
usually allowed to charge for their time dedication. However, in some programs that are
sponsored by the court, they are free when it comes to all residents.
On the other hand, distributive bargaining takes into account a method used when
conflicting parties want to divide something up. Therefore, distributive bargaining helps in
deciding how a fixed resource such as money will be distributed between parties. In this process,
the proportional to be distributed between the parties is variable (Doherty & Guyler 2008).
Distributive bargaining is typically referred to us as the win-lose. This is because it has the
assumption that the win of one party is the loss of the other party. Ideally, distributive bargaining
takes into account the use of pie in order to show how the proportion that each party will acquire.
The goal of this method is not to assure that there is a win in both sides, but rather to make sure
that one side wins as much as possible. This implies that one side has to lose, or get less that it
had intended. Another thing to note about this method is that its tactics rarely have the
assumption that the pie will be divided equally between the conflicting parties.
Advantages and Disadvantages of Mediation

There are many advantages associated with the use of mediation as a way of resolving
conflicts. One of the advantages is that it is cheaper as compared to other methods of resolving
disputes. Despite the fact that mediators may charge the same fee as an attorney, the time taken is
usually less. Less time implies less fee. Another advantage is confidentiality. On this, mediation
usually remains confidential, as compared to court hearings which are public. Apart from the

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conflicting parties and the mediators, no one else knows anything about the disputes. The other
advantage of mediation in resolving disputes is that it enhances control. On this, it is true that
mediation process usually increases the control that the conflicting parties have over the dispute
resolution. This is usually not the case with other methods of conflict resolution such as the court
(Doherty & Guyler 2008). Therefore, mediation usually produces more excellent results as
compared to other methods. Mutuality is another advantage associate with mediation. On this, the
conflicting parties in mediation are usually ready to work together for the purpose of achieving
mutual agreement. Working together means that the parties are willing to take any position after
the agreement. Lastly, support is another key advantage of mediation. On this, mediators are
usually well trained when it comes to working with challenging situations. With regards to this,
the mediators are able to help the parties come up with various possible solutions. This support is
crucial when it comes to coming to a mutual agreement between the conflicting parties.
When it comes to disadvantages of mediation, the first one is that it does not always result
to resolution of conflicts. On this, the conflicting parties may spend their money and time, but at
the end they end up solving the dispute in court. Therefore, opting to go for mediation implies
that is a form of risk undertaking (Strasser & Randolph 2004). The second disadvantage is that
mediation usually does not have constitutional and procedural protections. Lack of formality in
this case may result to an inequitable settlement. On this, the more positioned party may
overwhelm the less-well positioned party, leading to unjust settlement. The other disadvantage of
mediation is that it is not possible to set legal precedent in the process of mediation. On this, it is
a fact that many cases which are discriminative are usually brought for the purpose of securing
satisfaction of one party. Therefore, mediation is not beneficial in such circumstances. Lastly,
lack of formal discovery process is another disadvantage associated with the process of

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mediation. On this, one party cannot address the dispute without receiving required information
from the other party (Saner 2008). If this does not happen, it is not possible to compel the
disclosure of that information. Therefore, the conflicting parties have to rely on the good faith of
one another, and this faith is not enough in ideal situations.

Advantages and Disadvantages of Distributive Bargaining

Just like any other method of conflict resolution, distributive bargaining usually have its
own advantages as well as disadvantages. On advantages, it is true that distributive bargaining is
non-adjudicative. This means that it only involves the conflicting parties. Therefore, the outcome
of distributive bargaining is reached by the involved parties without any recourse with regard to a
third-party neutral (Saner 2008). Another advantage of distributive bargaining is that it is
voluntary. No party is usually forced to participate in this method. Still on this, parties may
choose to participate directly in this process, or may opt to choose other people to represent them
such as friends and family members. Just like in mediation, confidential is another advantage of
collective bargaining. On this, the conflicting parties can chose to negotiate privately or publicly,
of which the former ensures high levels of confidentially. Lastly, distributive bargaining is
flexible. This implies that the parties have the choice of determining the topics that will be
subjected to the process (Gelfand & Brett 2004).
When it comes to the disadvantages, the first one is that the absence of a third party may
encourage one of the parties to take advantage of the other. This may lead to emergence of other
conflicts between the parties. Another disadvantage is that in distributive bargaining, there is no
guarantee of good faith with regards to the parties involved (Saner 2008). The other disadvantage
is that the absence of a neutral third party can lead to parties being unable to come to an

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agreement. This is because the conflicting parties may not be able to define the issues at hand
without the help of a neutral third party. This means that at time it becomes difficult to even make
any progress towards achieving mutual agreement.

Situations of Applications

Both mediation and distributive bargaining may be applied in different situations. This is
usually dependent on the relationship between the parties and the cost involved in resolving the
disputes. When it comes to mediation, it is usually useful in a situation where the conflicting
parties want to maintain and preserve their relationship (Strasser & Randolph 2004). For instance
if business partners have conflicts, mediation is useful. This is because they must be in a good
relationship in order to work together for the good of their business. Therefore, mediation is of
paramount significance in this situation.
When it comes to distributive bargaining, it is mostly applied in a situation where the
negotiator have the motive of maximizing the value obtained from a single deal. It is also useful
in a situation where relationship between the conflicting parties is not vital (Gelfand & Brett
2004). For instance, when parties are from different business settings want to distribute money
between themselves, distributive bargaining can be used.
Conclusion

In conclusion, it is fact that disputes are inevitable in any workplace setting. Taking this
into consideration, there is a need to implement the various methods of conflicts resolution
available. Considering the above, mediation is one of the methods of conflict resolution where a
third party, who is neutral, assists the conflicting parties in reaching to a mutual agreement. It is
usually applied in a situation where the relationship between the conflicting parties needs to be

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maintained. On the other hand, distributive bargaining entails deciding how a fixed resource
should be distributed between conflicting parties. This method is applicable in a situation where
the relationship between the conflicting parties is not much necessary.

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References

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Doherty, N., & Guyler, M. (2008). The essential guide to workplace mediation & conflict
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Gelfand, MJ., & Brett, JM. (2004). The Handbook of Negotiation and Culture. Stanford, Stanford
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