INTRODUCTION

Negotiation and mediation are the primary no coercive methods by which actors in conflict settle
their disputes. This holds true for all levels of conflict, from the individual to the international.
This should not be surprising, since joint, voluntary decision making obviously has greater
advantages and fewer risks for all parties than unilateral methods or binding third-party methods
such as adjudication (Pruitt and Carnevale 1993). In the international arena, negotiation and
mediation are as common as conflict itself. They have been since relations between states began.
We define negotiation as a process by which states and other actors communicate and exchange
proposals in an attempt to agree about the dimensions of conflict termination and their future
relationship (Bercovitch and Jackson 1997).Mediation in many ways is an extension of
negotiations where the parties to a dispute seek the assistance of, or accept an offer of help, from
a party not directly involved in the conflict, to resolve their differences without invoking the
authority of the law. The key differences between the two methods relate to the additional
resources and expanded relationships and communication possibilities that a mediator brings to
the conflict management. The transformation of a dyadic negotiation system into a triadic,
mediated-negotiation system results in numerous possibilities for mediators to influence the
relationship with, and between, the parties.
Negotiation and mediation emerge from specific situations. Certain preconditions must exist for
conflict management even to be contemplated, and these preconditions often form part of the
context of negotiation and mediation. For negotiation, the pre-conditions are:

• A low or decreasing probability of attaining conflict goals through violent struggle,

withdrawal, or avoidance.
• A decreasing value of the conflict goals, relative to the direct costs of pursuing those goals
and relative to other goals.
• A set of common or compatible interests between the parties, or at least the possibility of
a settlement offering mutual advantages over continued conflict.
• The flexibility by each leadership to consider negotiation (Stephens 1988).Since we
conceive of mediation as a form of assisted negotiation, the preconditions for negotiation
also hold for mediation. This raises the question of why international actors would ever
contemplate mediation.
That is, if the parties are sufficiently motivated to cooperate and see mutual advantages in a
peaceful settlement, then logically they should be able to negotiate directly and resolve their
disputes without outside intervention.

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 NEGOTIATION

Negotiation originates from the Latin neg (no) and otsia (recreation) alluding to businesspeople
who, in contrast to the patricians, had no relaxation time in their enterprising nature; it held the
importance of business (le négoce in French) until the seventeenth century when it took on the
political implication as a discourse between at least two individuals or gatherings planned to
achieve a useful result more than at least one issues where a contention exists as for something
like one of these issues. In this way, exchange is a procedure of consolidating different positions
into a joint understanding under a choice standard of unanimity.

It is planned to determine purposes of distinction, to pick up preferred standpoint for an

individual or aggregate or to create results to fulfil different interests. It is regularly led by
advancing a position and making concessions to accomplish an understanding. How much the
arranging parties trust each other to execute the arranged arrangement is a main consideration in
deciding if dealings are fruitful.

Individuals arrange day by day, regularly without thinking of it as an exchange. Arrangement

happens in associations, including organizations, non-benefits, and inside and between
governments just as in deals and legitimate procedures, and in close to home circumstances, for
example, marriage, separate, and child rearing, and so on. Proficient arbitrators are regularly
particular, for example, association mediators, influence buyout moderators, harmony moderator,
or prisoner mediators they may likewise work under different titles, for example, representative’s
lawmaker or intermediaries.

Background: - In the arrangement based economy of the present world, there is a developing
requirement for organizations to work together with one another. As a result of the shifting
needs, needs, points, suppositions, and convictions of the gatherings united, clashes and
differences are unavoidable. However, people neglect to understand the significance of
understanding just as organizing the use of exchange abilities to the effective task of their
organizations.

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Having people with phenomenal arrangement aptitudes can add to the association's prosperity on
the grounds that:

Great exchange aptitudes help construct connections in light of the fact that the point is to
cultivate altruism in spite of distinction in interests.

Great arrangement aptitudes convey quality arrangements that additionally last more, rather than
momentary arrangements that neglect to fulfil both of the gatherings totally. This is on the
grounds that it empowers you to make concessions to such an extent that they might be of little
significance to you however it gives the other party something that implies a great deal to them.

Great exchange aptitudes likewise help in dodging future clashes and issue by leaving the two
gatherings similarly happy without any boundaries to correspondence for what's to come. Thus,
they are eager to cooperate again later on.

Negotiation Process:
Negotiation can break out at any time, in any place between two or more parties, it is the method
that can be exercised in free for all arguments and discussions to solve a dispute. Although it is
an immediate and easier approach, still there are some conditions and stages that are required
prior starting negotiation process, which are given below –

Conditions for Negotiation:

1) Identifiable party – Two Identifiable parties or their agents are required to start a
negotiation process.

2) Mutual interest or dependence – The parties must have a mutual interest, which is the
main driver and variable for negotiation. If there’s no mutual interest or dependence,
there’s no reason to negotiate.

3) Willingness and desire to agree – Parties need to show their willingness to negotiate.
Because if two or parties are not willing to negotiate, it will not take place. Also the
parties must have desire to agree with the resources to make it happen.

4) Enforceable agreement – There should be an enforceable agreement that is negotiable.

To begin the negotiation process, the parties or the negotiators must agree and bind with
the agreement.

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 5) Tempus Fugit – It helps the process if the willingness is increased by the desire to agree
on terms presented by some external deadlines.
Stages of Negotiation Process:
Negotiation has some distinct number of phases in which the circumstances can occur and the
negotiation takes place in any kind of order or combination. There are 4 phases which are
described below –
1) Pre-Negotiation – In this phases, shared interests, further requirements and dependency
are identified. Also suitable forum or medium is also selected for clear communication.

2) Identifying the concept – Each parties positions are identified and communicated and
also understanding the subject of matter that is in question.

3) Bargaining/ Negotiating – Each party presents their argument and also evaluates the
perception of the other party’s position and places their suitable solution to solve the
dispute.

4) Settlement/ Agreement – In this phase, both parties reaches on an agreement and also
records the settlement.

Application of Negotiation (CASES)

Negotiation Examples 01 - Disney’s Purchase of Lucasfilm

On October 30, 2013 the Walt Disney Company made a surprise announcement that it
was acquiring Lucasfilm, home of the immensely successful Star Wars brand, from its founder,
George Lucas, for $4.05 billion, split evenly between stock and cash. Lucas was the sole
shareholder in his company.

The acquisition bolstered Disney’s status as a leader in animation and superhero films and gave
it the opportunity to reap huge earnings from the already lucrative Star Wars media and
merchandising empire. Disney promised to begin producing and releasing new films in the Star
Wars franchise every two or three years. The acquisition even included a detailed script
treatment for the next three Star Wars films.

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The 68-year old Lucas decided to sell his company after beginning to plan his retirement several
years ago. According to Walt Disney Chairman Robert Iger, a famous negotiator in Hollywood,
he and Lucas conducted the negotiations personally, beginning in early 2011. Speaking of Lucas’
decision to hand over his creative legacy to Disney, Iger told the New York Times, “There was a
lot of trust there.”

Negotiation Examples 02 - Apple and U.S. Book Publishers

On April 12, 2012, the United States Department of Justice (DOJ) sued Apple and five
major U.S. publishers for colluding to raise the prices of ebooks. Three of the publishers settled
the suit; two others and Apple were unwilling to settle.

In January 2010, the publishers had negotiated a new business model for ebook pricing with
Apple as it prepared to launch the iPad: in exchange for a 30% sales commission, Apple would
let the publishers set their own prices for ebooks. For the publishers, this pricing model appeared
to be a vast improvement on their wholesaling arrangement with Amazon. After at least one of
the publishers threatened to delay release of its digital editions, Amazon reluctantly replaced its
flat $9.99 price for ebooks with Apple’s model, and prices rose industry-wide to about $14.99 on
average.

The DOJ’s lawsuit suggests that the negotiators and attorneys involved may have neglected to
thoroughly analyze whether their agreement would truly create value for consumers—and thus
whether it fell within the parameters of U.S. antitrust law. In the flush of hammering out a deal
that appears to create synergy for everyone involved, negotiators sometimes neglect to consider
how their agreement could affect outsiders, an oversight with ethical and legal implications.

Advantages and Disadvantages of Negotiation

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 MEDIATION

Introduction: Mediation is a dynamic, organized, intuitive procedure where a nonpartisan

outsider helps debating parties in settling strife using specific correspondence and arrangement
methods. All members in intervention are urged to effectively take an interest simultaneously.
Mediation is a "party-focused" process in that it is centred principally upon the requirements,
rights, and interests of the gatherings. The middle person utilizes a wide assortment of strategies
to manage the procedure a useful way and to enable the gatherings to locate their ideal
arrangement. A go between is facilitative in that she/he deals with the association among
gatherings and encourages open correspondence. Intercession is likewise evaluative in that the
middle person investigates issues and significant standards ("reality-testing"), while at the same
time ceasing from giving prescriptive guidance to the gatherings (e.g., "You ought to do... .").

Intervention, as utilized in law, is a type of ADR settling debate between at least two gatherings
with solid impacts. Ordinarily, an outsider, the middle person, helps the gatherings to arrange a
settlement. Disputants may intervene debate in an assortment of areas, for example, business and
legitimate, conciliatory, work environment and network and family matters.

The expression "intervention" extensively alludes to any case in which an outsider helps other
people achieve understanding. All the more explicitly, intervention has a structure, timetable and
elements that "common" arrangement needs. The procedure is private and classified, perhaps
upheld by law. Support is ordinarily deliberate. The go between goes about as an unbiased
outsider and encourages as opposed to coordinates the procedure. Intervention is turning into a
progressively quiet and globally acknowledged arrangement so as to end struggle. Mediation can
be utilized to determine question of any extent.

The expression "intervention," in any case, because of language just as national legitimate
models and guidelines isn't indistinguishable in substance in all nations yet rather has explicit
undertones and there are very a few contrasts between Anglo-Saxon definitions and different
nations, particularly nations with a common, statutory law trait: Embedding Mediation and
Dispute Resolution into Statutory Civil Law.

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Middle people utilize different methods to open, or improve, exchange and sympathy between
disputants, intending to enable the gatherings to achieve an understanding. Much relies upon the
middle person's ability and preparing. As the training picked up fame, preparing projects,
confirmations and authorizing pursued, delivering prepared, proficient go between focused on
the control.

Background:- Mediation is a method for settling question by naming an impartial outsider

arbiter to encourage correspondence between the gatherings, with the end goal of concurring a
settlement. The courts firmly underscore the significance of endeavoring to determine debate in
intercession before seeking after a case in the courts. As a major aspect of their procedure of
endeavoring to energize elective debate goals, the courts are happy to force cost authorizes on
gatherings who will not take part in intervention.

In any case, a gathering which thinks of it as has an exceptionally solid case in a debate may
think about that intervention is a silly and pointless misuse of expenses.

Mediation Process

1. Mediator decides on all things on the procedure such as time, space, logistics and arranging
them.
2. Parties meet mediator in a neural place.
3. Procedure includes a mediator, who has no personal agenda.
4. Mediator leads discussion, gives out turns to speak and decides on breaks. Mediation has
more structure than negotiation.
5. Mediation can be undertaken in any kind of forum, although in the authors experience the
more complex the dispute the easier it is to resolve if the parties are in the same physical
space at the same time.

Conditions for Mediation:

Mediation is a consensual process which in essence, requires only the consent of the parties to
take place. If during the process of disputing in court, the parties decide to attempt to settle their
dispute with the assistance of a mediator.

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Mediation has grown in popularity with hard pressed litigators because of the perceived speed
and low cost of the mechanism.

The benefits of mediation is the reduction in drain on the public purse by the simple expedient of
encouraging parties to settle their differences which is in a self-funding process while improving
access and speed of resolution is most likely seen as a vote winner.

These stages are very much akin to the conceptualization phase of negotiation. The knowledge
gained about the other party’s position and your own relative strength, can often leads to the
right conditions for mediation to become a desired option.

Courts in particular are keen to ensure that something seen as an adjunct to the court process
should be suitably formal and that its conduct generates the appropriate confidence in its users
and the public. Mediation, in the modern form is more formal than negotiation. The
formalization having much to do with its acceptance and promotion by institutional bodies who
are concerned with the robustness of the process and the regulation of mediators.

Stages of Mediation:

1. Facilitative Mediation / Traditional Mediation: Rather than making recommendations

or imposing a decision, the mediator encourages disputants to reach their own voluntary
solution by exploring each other’s deeper interests.

2. Court-Mandated Mediation: This is a speedy and cost-efficient settlement. When parties

and their attorneys are reluctant to engage in mediation, their odds of settling through court-
mandated mediation are low, as they may just be going through the motions.

3. Evaluative Mediation: This is a type of mediation where mediators are more likely to
make recommendations and suggestions and to express opinions. Instead of focusing
primarily on the underlying interests of the parties involved, evaluative mediators may be
more likely to help parties assess the legal merits of their arguments and make fairness
determinations.

Transformative Mediation:
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In transformative mediation, mediators focus on empowering disputants to resolve their conflict
and encouraging them to recognize each other’s needs and interests. At its most ambitious, the
process aims to transform the parties and their relationship through the process of acquiring the
skills they need to make constructive change.

Med-Arb:

Here a mediation-arbitration hybrid, parties first reach agreement on the terms of the process
itself. Unlike in most mediations, they typically agree in writing that the outcome of the process
will be binding. Next, they attempt to negotiate a resolution to their dispute with the help of a
mediator. If the mediation ends in an impasse, or if issues remain unresolved, the process isn’t
over. At this point, parties can move on to arbitration. The mediator can assume the role of
arbitrator (if he or she is qualified to do so) and render a binding decision quickly based on her
judgments, either on the case as a whole or on the unresolved issues. Alternatively, an arbitrator
can take over the case after consulting with the mediator.

Arb-Med:

In arb-med, another among the types of mediation, a trained, neutral third party hears disputants’
evidence and testimony in an arbitration; writes an award but keeps it from the parties; attempts
to mediate the parties’ dispute; and unseals and issues her previously determined binding award
if the parties fail to reach agreement. The process removes the concern in med-arb about the
misuse of confidential information, but keeps the pressure on parties to reach an agreement.
However, the arbitrator/mediator cannot change her previous award based on new insights
gained during the mediation.

E-mediation:

In e-mediation, a mediator provides mediation services to parties who are located at a distance
from one another, or whose conflict is so strong they can’t stand to be in the same room. E-
mediation can be a completely automated online dispute resolution system with no interaction
from a third party at all. Parties can now easily and cheaply communicate with one another in
real time, while also benefiting from visual and vocal cues by video conferencing. Early research
results suggest that technology-enhanced mediation can be just as effective as traditional

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meditation techniques. Moreover, parties often find it to be a low-stress process that fosters trust
and positive emotions.

Application of Mediation (CASES)

The case – Intellectual property disputes and alleged theft! An action was brought against an ex-
employee who left his previous employers Property Company to start his own property company.
It was alleged that the ex-employee had taken confidential information and had used the same to
further his own company which appeared to be fiercely competing with his ex-employer.

Equally it was alleged that he was still passing himself off as an employee, which gave him
leverage in securing further clients, contracts and contacts.

The employer sued for a catalogue of issues, but mainly; copyright infringement, theft of
intellectual property and passing off of trade goodwill and reputation. Legal fees were getting
ridiculous and were nearly as much as the claim, the lawyers suggested mediation, and finally
the parties agreed.

The Solution – The ex-employee refuted all the allegations made, the employer clearly
evidenced parts of his claim which put the ex-employee on very shaky ground, however there
were segments of his case which he clearly could not prove.

The afternoon came and went, after a very long meeting in the early evening with his barrister
the ex-employee proposed the following; agreement to pay an amount against each head of claim
which there was clear evidence by the employer, the amounts were based upon what his
litigation risk ultimately would be under each head of claim, as well as to pay a contribution
towards the employers legal costs, he also agreed to stop some of the activities he had engaged in
which was sufficient to allow the employer to drop his whole claim and walk away with what
had been negotiated and agreed.

Benefits achieved: Saved time and money for both parties.

• The mediation took 1 day compared to the 16 months this intellectual property dispute
had already gone on.

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 • The mediation cost each party £950.00 each compared to the thousands they had already
spent on legal fees and the thousands they would have had to spend had they continued
with Court action.

The case – Insurance mediation was required for a dispute over a fire. Party 1 sued their insurers
for refusing to pay out on an insurance policy concerning their commercial premises. Following
a fire nearly £2million pounds worth of damage had been caused, as this was the claimants main
headquarters business was being disrupted adding to further losses.

The policy wording was quite ambiguous concerning exclusions for a refusal to pay out when
fire had caused damage / loss. Party 1 contended the exclusion did not apply, whereby the insurer
was adamant that it did.

The Solution – Mediation was entered into and both parties were steered very cautiously by
counsel. The parties had a long standing relationship, many of their subsidiaries were also
insured through this insurer, the insurer wanted to retain their custom but not at any cost.

Mediation allowed for a deal to be made which served both of their interests, party 1 did not get
a complete payout but 70% of what they were asking, the insurer also agreed to reduce their rates
of insurance and freeze the same for a 3 year period in respect of some of party 1’s activities,
which provided a considerable cost saving to them. Equally all new polices would be clearer on
what was covered and what was excluded.

Benefits achieved: Saved time and money for both parties.

• The mediation took 1 day compared to the 10 months this insurance dispute had already
gone on.

• The mediation cost each party £1800.00 each compared to the thousands they had already
spent on legal fees and the thousands they would have had to spend had they continued
with Court action.

Advantages and Disadvantages of Mediation

Advantages:

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The advantages and positive results on various cases over the past years, mediation has been more
effective than any other ADR (Alternative dispute resolution) recently. In mediation, the mediator
brings people in conflict together to assist them resolve an issue without going to court.

In mediation, there’s 90% chances for a long term resolution of a particular dispute with analysing
every aspects and arguments presented by the parties in front of the mediator and no parties can
actually impose their power to another party as there’s an existence of a mediator. Some of most
important advantages are as follows:

• Deciding Authority: Only individual or the party has the authority to make decision.
Mediator just helps the people in dispute to analysis the complex trade-offs, understand
legal rights and obligations and then be able to make decision that satisfies self-interest.

• Focused on needs and interests of the parties in dispute: Mediation strongly emphasizes
the causes of the dispute and what solution can be best suited to fulfil the involved parties
need and satisfy their interests.

• Continuation of social relationship: Family members, business partners, political

members, supervisors and their employees, neighbours and neighbours have to interact
with each other cooperatively. But taking legal actions and going to the court usually divide
people and break every sort of relationship and increases rivalry. As a future oriented
method, mediation tends to solve the problem rather than breaking the social relationship.

• Higher Satisfaction: various survey reports on mediation all over the world shows higher
satisfaction rates than people who goes for lawsuits. Because, in mediation parties actively
participates and give higher commitment to uphold the settlement rather than letting the
court decide for them. 70% to 80% of the time mediation ends in agreement and tends to
have higher rates of compliance.

• Fast solution and cost effectiveness: Mediation and the decision on the agreement may
be done in a few hours, or few days or mostly in over a few weeks whereas the court may
take a month or years to come to a trail on a particular case.

In terms of cost, the lawsuit or court process is expensive as it consists of trail fee, paper work fee,
and advocate fee etc. sometimes the cost doesn’t convert into benefit when the decision is not in

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favour. In mediation, the service is given at a low cost and if any of the party doesn’t agree with
the solution, other options are still available.

Disadvantages:

1) Sometimes not cost effective – There’s no doubt that mediation is more cost effective
than any other dispute resolution method. But it is only cost effective if it succeeds. But if
it fails to reach on an agreement/ settlement, all the expenditure occurred during the
mediation process will to go rack.

2) Unskilled and biased mediator – The mediation process is consistent but also a
vulnerable process that can break down any moment even in the presence of a mediator.
Only a skilful mediator is able to avoid it and end it on an agreement. An unskilled and
biased mediator hamper the process leaving any of the parties dissatisfied.

3) Misuse by the powerful parties – The strongest party can impose pressure to delay or
lower the settlement. Also they can impose their power to gain favourable settlement and
try to avoid possible debt by forcing other parties to fail and back out.

4) Still involves court when agreement is not performed – Mediation process is not
binding until the parties reach to an agreement. But if the agreements is not honoured,
fails to deal with changes in consequences, then the agreement becomes enforceable
which will involve the court any ways.

Comparisons and Arguments (Negotiation vs. Mediation)

Why negotiation is better method than mediation?

• Easy to reach an agreement: In negotiation, both parties are involved in discussions

between both parties to reach an agreement as reasonable.

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 • Art of discussion: People practice the art of discussion from childhood, advice parents to
reach an agreement on a certain matter or with a family member or friend. They all fall
into the negotiation.
• Low Cost: The most popular benefit of negotiation is its low cost. This is one of the least
expensive ways to reach a dispute settlement for both parties.
• Compared to court remedies: Negotiation is better method than mediation, because an
agreement reached through mediation is not honored by both parties, the sole remedy
may be to strengthen the agreement through court. These complications are considered
reasonable for both parties or can be avoided to ensure confirmation through the contract
as arbitrator prize.
• Time efficient and less stressful: Negotiation is the most time efficient and less stressful
remedy among all other ADR methods. Both parties consent to sit together and negotiate
terms to solve an issue is all that negotiation method needs.

Why is mediation better method than negotiation?

Aspects Mediation Negotiation

Enforcement In mediation, with help of a mediator, In negotiation, sometimes the

& Settlement all necessary statements, proofs,
amount of loses/ damages are properly
recorded and analysed unbiasedly to
bind and make enforceable agreement.
Also an equal opportunity is given to
both parties to present their views to
the mediator to reach to a desired
settlement.
powerful party seems to take the whole
opportunity to give statement and even
takes the decision forcefully. In most
of the cases, parties in dispute doesn’t
respect other party’s point of view and
often the statements and decisions
become biased. In this case, making a
settlement becomes tough.

Standard Mediation has standard flexibility. Negotiation is too much flexible to

Flexibility Like negotiation, in mediation, parties
in dispute has the deciding power but
before that, all aspects and needs are
reviewed by the mediator. Then
mediator presents the bindings and
possible outcomes which is best suited
resolving a dispute as the controlling
power in on the hands of the people in
dispute. So decision often goes to the
hands of the superior.

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 to the interest of the people in dispute.
Then the decision is taken.

Time Mediation process is time efficient. Negotiation, on the other hand, is a

efficient Because a less time is allocated for
activities such as – Pre mediation
preparation, sessions for statements
given by the parties, hearing and
making an agreement. All these are
done efficiently at a short time.
speedy process but not time efficient.
It can be arranged in anytime,
anywhere without making any prior
preparation or prior analysing of the
aspects of the dispute. So the decision
making is swift here but may not be an
effective one.

Misuse of In mediation, there’s less chance of There’s a higher chance to misuse the
power and misusing the power and the flexibility power and the flexibility by a party.
given to the parties as there’s a Decision can go to the favour of the
flexibility
mediator involved powerful party leaving the other one
dissatisfied.

Ignorance There’s a lower chance to ignore Negotiation can happen anywhere,

possible facts that are important in the
case as the mediator is in charge of
recording and analysing everything.
anytime and can end as quickly as it
began. So there’s a higher chance that
important aspects are being ignored
and one party may not get the
opportunity to present properly.

Cultural Cultural difference cannot affect the
difference decision making process as the
mediator plays a neutral role and helps
to make an agreement irrespective of
any sort of difference.
Cultural difference can impose a huge
effect on the decision in the
negotiation method. Parties can act on
their personal judgment and this may
increase the conflict even more.

Overall Opinion

Which one is better method and why?

In comparison to the adjudication (litigation), the alternative dispute resolution process:

negotiation and mediation are private, informal, more mutual, facilitative, future-looking,
interest-based processes that bring parties to an adjusted, multi-dimensional, win-win remedy
that is more durable because of the parties’ consent in the outcome.

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Negotiation and non-binding mediation are alternative dispute resolution (ADR) processes
designed resolve a conflict between parties unable to reach agreement. Direct negotiation is
another method of settling legal disputes and is one of the tools that, if used effectively, can lead
to early resolution of disputes. Direct negotiation typically starts during the “quiet phase” of
litigation, which refers to the period between the filing of the complaint and the start of
discovery.

Mediation uses a trained, impartial third party to help reach consensus on substantive issues at
disagreement among conflicting parties in public involvement. However, Mediation is unlike
litigation or arbitration which determines “winners” and “losers”, the focus of mediation is to
find common ground between the parties and to resolve the matter in a “win-win” outcome.
Mediation is most utilized in disputes between parties who contemplate future business or have a
personal relationship. Mediation is also frequently utilized in litigation as an effort to get the case
resolved at the early stages.

Choosing the most appropriate dispute resolution technique depends on the particular facts,
circumstances and characteristics of the dispute, the participants and the dispute resolution
strategy as well as on the client’s goals and risk tolerance. It is practically impossible to say who
wins in a dispute resolution battle between negotiation and mediation. Instead it is best to
recognize the inherent strengths of each process and ensure that parties employ the best method
of dispute resolution based upon the nature of the dispute, the abilities of the parties, the progress
that has been made in resolving the dispute and the availability of a trained mediator.

The application of mediation and negotiation to the legal dispute resolution process is not
intended to replace or supplant the need for public adjudication and pronouncements on the
critical issues, but to complement and preserve the judicial system. These alternatives may
provide to mitigate some of the pressures currently impeding the performance of current court
systems.

Although negotiation should be the first step to resolve a dispute but still mediation is more
effective to finally solving an issue for by considering aspects such as time and cost efficiency,
Equal opportunity, ideal communication irrespective of cultural and social differences,
satisfaction of both party’s needs, long term settlement etc. It’s the best possible method
performed outside the court that helps to form a mutual agreement without taking chance in the

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court and giving the decision making power to the judge. Also there’s a room for any sort of
disagreement and re-establish the mediation process or going for other legal help whereas going
directly to the court, one can loss the future chance to mediate or even negotiate.

Conclusion

Our study has examined some of the most important contextual factors that influence whether
one should choose negotiation or mediation. We have investigated these factors in an empirical
manner, and found that a number of key factors related to the issues in conflict, the nature of the
dispute, and the nature of the parties impact on the choice of negotiation or mediation. As such,
we have confirmed the oft-repeated notion that mediation will be chosen and employed by the
parties when the conflict is long, drawn out, intense, and complex, and the parties are willing to
break their stalemate by cooperating with each other and engaging in some contact and
communication. On the other hand, the conflict structure is simpler and less intense, parties will
most likely resolve it themselves through bilateral negotiations. In such circumstances, the
parties may perceive third-party intervention as an unwanted intrusion and even resist it. There is
at least one caveat to this, however: the results of our study suggest that, even if the nature of the
dispute is relatively straightforward, negotiation may be impeded by the parties themselves. If
they are very different in terms of their capabilities, if one or both of them are fragmented, or if
they lack the political will to initiate talks, for example, mediation may then have to be
employed. The problem of coping with, or managing, conflicts remains one of the most
important challenges confronting all of us. Here we have tried to answer this problem by
examining the circumstances under which international actors pursue the strategy of negotiation
or mediation. Rather than offer a prescriptive template, and suggest that it can be applied to all
conflicts, we have tried to examine theoretically and empirically the constraints and
opportunities of reverting to negotiation or mediation to settle a conflict. We found that a number
of contextual factors can affect this choice: moderate levels of conflict, a relatively simple issue
structure, homogenous parties, and a willingness to reach a settlement predispose states to use
negotiations. High levels of conflict, complex issue structure, heterogeneous parties, and a low

17
motivation to reach an agreement make mediation the more likely strategy. So in our view the
temptation to suggest a single strategy for all conflicts should be resisted.

Appendix:

Negotiation (CASES): https://www.pon.harvard.edu/daily/negotiation-skills-daily/famous-

negotiators-feature-in-top-negotiations-of-2012/

Mediation (CASES): https://legaldictionary.net/mediation/

https://www.resolution.institute/dispute-resolution/mediation.

https://www.wipo.int/amc/en/mediation/case-example.html

Mediation vs. Negotiation:

https://www.driver-group.com/europe/news/mediation-vs-negotiation

https://adr.findlaw.com/mediation/the-advantages-of-mediation-cases-over-traditional-
lawsuits.html

https://www.sfbar.org/adr/resolve-a-dispute.aspx

Opinion:

https://www.adlilaw.com/litigation-vs-arbitration-vs-mediation-vs-negotiation/
https://sbemp.com/why-mediation-better-negotiation-disputes

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