Question
The Common Driveway Case
After reading Chapter 7 and The Common Driveway case (below), address the issues below:
a. Explain whether the dispute is at an impasse or not and if any party is experiencing any settlement pressures.
b. Discuss the use of arbitration or mediation if the negotiation between the Wilsons and Greens reaches an impasse. Should they consider arbitration or mediation to resolve their differences? Why or why not?
c. Analyze other hybrid forms of alternative dispute resolution (ADR) that are available and should be considered if negotiations fail to produce a settlement.
Sample paper
Alternative Dispute Resolution
Introduction
The Wilsons and the Vroomans have lived together in peace for quite a while, sharing a common driveway. However, the Wilsons seems to experience challenges with their new neighbors involving the shared driveway and other issues that Mr. Green raises during the initial negotiation. If negotiations fail, the parties will likely result to an alternative dispute resolution mechanism (ADR). ADR involves using various methods, techniques and strategies by a third party to help resolve disputes among parties and without going to court (Carrell & Heavrin, 2008). This often entails the application of various dispute resolution mechanisms such as mediation, neutral evaluation, arbitration, conciliation, and among others. The ADR method of dispute resolution is widely accepted owing to its flexible nature, time saving ability, and low costs involved. This article will examine “The Common Driveway” case while addressing the various ways in which the two parties may reach a mutual resolution.
Whether the Dispute is at an Impasse
The Wilsons and the Greens are involved in a bitter tussle over the shared driveway. Both families present valid grievances. They seem to have reached an impasse as a solution if hard to find bearing the latest turn of events. The Wilsons are agitated that Mr. Green’s teenage children park on the shared driveway, and thus blocking the driveway. Mr. Green responds by telling the Wilsons to trim the oak tree whose branches extend to his house and pose a danger. Mr. Wilson responds to this by claiming that Mr. Green’s children keeps him awake through their late evening band practice session. These issues seem to stem up after the Wilsons raise up the complaint about the Greens parking on the driveway. As such, the children practice may not be such a contentious issue in the case, but something that the Wilsons can tolerate. In such a situation, it is difficult to find an amicable solution since both parties set up conditions for the other party to fulfill before they can fulfill their own conditions. For instance, Mr. Green agrees to put a curfew on late evening band practice only when the Wilsons trim the oak tree. Mr. Green also talks about seeing his lawyer, meaning he is not willing to negotiate further with the Wilsons. This indicates an impasse situation.
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Mediation
Mediation is a commonly applied tool in alternative dispute resolution. Mediation is used to resolve disputes among individuals, parties, and organizations (Alibekova & Carrow, 2007). In applying the mediation process to resolve disputes, a mediator is appointed to oversee the entire process. The mediator is not involved in delivering the final judgement. The key role of the mediator is to facilitate talks between the aggrieved parties. The mediator acts as a third party with the necessary knowledge, skills and expertise to eliminate conflicts among parties while maintaining neutrality and professionalism. Judging by the current situation, the Wilsons and Mr. Green should opt for ADR as the best dispute resolution mechanism. They can commence the process by seeking the services of a trusted mediator. Mediation is the best strategy to use in this case since it helps develop positive relations through communication among the aggrieved parties. Mediation can thus help to identify a solution quickly in this case.
Whether to consider mediation or not
The Wilsons and Mr. Green can employ mediation as a form of alternative dispute resolution that can help them resolve the current stalemate. According to Jameson, Sohan, and Hodge (2014), mediation is a less costly process. As such, mediation can be much suitable for the Wilsons who have limited financial capability to pursue a litigation. Mediation can help avoid a litigation and speed up the process of dispute resolution. It can also lead to positive outcomes for the aggrieved parties.
Although mediation is seen as a solution to the current stalemate, it may not be applicable to this situation due to various reasons. First, the Wilsons are not willing to trim the oak tree due to financial constraints as well as the sentimental value they attach to the tree. Mr. Green, on the other hand, is only willing to place a curfew on the late evening band practice only if Mr. Wilson trims the oak tree. During the mediation process, a compromise may receive the first priority while a claim’s substance may be overlooked. Since the Wilsons and Mr. Green seem adamant to change their personal stand over the issue, mediation may not be of any importance in this situation. Thus, mediation may not be the best strategy to solve the current stalemate.
Arbitration
Arbitration is an alternative dispute resolution tool that involves the use an arbitrator or a neutral third party agreed upon by both parties to solve disputes. Arbitration is involves settling disputes outside the criminal justice system. Arbitration is a more formal process compared to mediation. In arbitration, the parties present their grievances or evidence to the arbitrator, who may be a retired judge, accountant, or even a senior lawyer (Alibekova & Carrow, 2007). The arbitrator is a person who has experience and knowledge in the matter at hand and can make decisions, unlike a mediator who only serves to help the parties reach a mutual agreement. Arbitration is more like the court process, only that it is an informal process.
Whether to consider arbitration or not
Arbitration is a possible strategy that can be used to solve the issue at hand. Mr. Green has already suggested that they can expand the driveway and use it separately, while Mr. Wilson considers this decision as costly, considering he is not in active employment. The outcomes of the arbitration process may favor one party over another. For instance, arbitration may see the Wilsons forced to trim the oak tree, or Mr. Green forced to expand the driveway using his finances. Arbitration can overlook certain facts in a case, such as the sentimental value of the oak tree. Arbitration may bring about a situation whereby one of the party’s concerns are ignored. Arbitration leads to the establishment of a legally binding contract. In such a process, the concerns of one of the parties may be sidelined, leading to poor interrelationships among the parties concerned. Of importance to note is that the Wilsons and Mr. Green are neighbors who need to live in harmony. As such, arbitration may not be an appropriate process to use in resolving the dispute.
Litigation
This is another way of resolving disputes. Litigation is applicable in situations where arbitration and mediation have failed to solve disputes between parties. Any of the aggrieved parties may seek litigation, which involves presenting the grievances to a court of law (Fiadjoe, 2013). Litigation is a fair way of settling disputes since it follows the established laws and procedures. In this case, the parties involved present their grievances to the court of law for hearing. If any of the parties is found to be at fault, they are penalized as per the written law of the land. Litigation has the capacity to affect the relationship between the aggrieved parties. Moreover, litigation is a time-consuming and costly process to use in resolving disputes for all parties involved. In addition, litigation does not accord the parties confidentiality.
Hybrid dispute resolution
This alternative dispute resolution tool combines the elements of one or more of different dispute resolution mechanisms. For instance, the hybrid dispute resolution may combine elements of arbitration and mediation to come up with a unique dispute resolution mechanism known as the med-arb. While applying this process, a neutral third party is used to conduct the entire exercise. The third party serves as the arbitrator and the mediator. According to Fullerton (2010), the med-arb process is effective since the arbitrator in place is conversant with the dispute between the parties once the mediation process ends. This is because the med-arb process considers mediation as the initial process, while arbitration comes second depending on whether the mediation process went successfully. The aim of the med-arb process is to have the parties to resolve conflicts mutually before they go the arbitration stage whereby the decisions made are legally binding.
An alternative form of the med-arb process is the arb-med variant, which involves starting with arbitration, while mediation follows. According to Carrell and Heavrin (2008), the neutral party makes a decision during the arbitration process, but the decision is not revealed to any of the parties. The parties then go through the mediation phase, while bearing in mind the fact that failure to arrive at an amicable solution will lead to the arbitrator applying his/her arbitration decision. The arb-med process can be a good way of resolving disputes.
Conclusion
The Wilsons hold an emotional attachment with the oak tree, which is among the contentious issues between the parties. On the other hand, Mr. Green seems unwilling to curtail his teenage children from parking on the shared driveway. Mediation and arbitration may not help resolve this issue. The best process to follow in solving this case is the arb-med method. This process starts with arbitration, and ends with mediation, all conducted by the same third party. It is clear that an impasse exists in the current situation, and only the arb-med process can best help to resolve the dispute.
References
Alibekova, A., & Carrow, R. (2007). International arbitration and mediation: From the professional’s perspective. Salzburg, Austria: Yorkhill Law Pub.
Carrell, M. R., & Heavrin, C. (2008). Negotiating essentials: Theory, skills, and practices. Upper Saddle River, NJ: Pearson Prentice Hall.
Fiadjoe, A. (2013). Alternative dispute resolution: a developing world perspective. United Kingdom, uK: Routledge.
Fullerton, R. (2010 May-July). Med-arb and its variants: Ethical issues for parties and neutrals. Dispute Resolution Journal, 65(2/3), 52-154. Retrieved December 30, 2016, from the Business Source Elite database.
Jameson, J. K., Sohan, D., & Hodge, J. (2014 April). Turning points and conflict transformation in mediation. Negotiation Journal, 30(2), 209-229. Retrieved December 30, 2016, from the EBSCOhost database.
