Authors: Mary F. Radford.
Source: Georgia State University
Document Type: Article
Mediation is the ADR process by which a neutral third party works with disputants to reach a
mutually agreeable resolution. Mediation is arguably the oldest and most popular4 ADR
technique in use today. Part I of this essay discusses the commonly accepted advantages of
mediation as an alternative to litigation, and, in some instances, questions whether those
advantages become disadvantages in the context of probate, trust, and guardianship cases.
Part 1I examines the use of mediation as a component of the actual estate planning process
rather than as an alternative to litigation.
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Mediation is a conventional process within which two people or parties tends to negotiate a
resolution of their disagreement with assistance of a unbiassed third party called negotiator.
This makes mediation a guided negotiation hence, ‘win-win negotiation.’ Ordinarily,
mediation is arguably the oldest and most popular technique for solving disputes. This is
because, it saves money, eases the court load, and more often than not, it provides both
parties in a good status quo. Numerous empirical studies and scholars have argued about the
importance and advantages of mediation process. Among the standing benefit of mediation,
negotiation is that it ensures privacy of the two parties. It is perhaps evident that common law
does not ensure confidentiality and concealment in negotiation proceedings However,
mediation allows the two parties to keep their proceedings confidential and offers them the
chance to continue to operate on their daily activities. Within the context of business
management, I believe this is a fundamental opportunity as parties can co-exist with one
another and reach a conclusion that will benefit their interest.
Another advantage of mediation is that it offers excellent control and its voluntary. In this
case, every party is directly involved in the negotiation process, and they have the chance to
address their interest and agreement. Power tends to influence outcomes of negotiation
process. However, within mediation process, potential power imbalance is controlled.
Conversely, they have the chance to withdraw at any time.
On the other hand, another advantage of the mediation process is that it preserves
relationship. Within the business niche, many, if not most ascend in the validation, belief, and
protection framework involve close partners who share common interest and could be easily
irredeemably shattered by vicious and lengthy hearing. Contrary to this, mediation tends to
resolve such cases as the mediator will be able to understand to deal with the present issue in