ASSIGNMENT

Not less than 5 pgs

There is a very thin distinction between negotiation and Mediation, one may be tempted to hold
that the two are simply two sides of the same coin. Anonymous. State to what extent do you
agree or disagree with the statement above.

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Negotiation and mediation are two important forms of dispute resolution. Both are used to
resolve conflicts and disagreements between parties. However, there is a fine line between the
two, and it is important to understand the differences between them. In this essay, we will
explore the similarities and differences between negotiation and mediation and state to what
extent we agree or disagree with the statement that the two are simply two sides of the same
coin.1

Negotiation is a process of communication between two or more parties with the aim of
reaching an agreement. Negotiation involves discussion, compromise, and bargaining in order
to achieve a mutually acceptable solution. Negotiation can take place in any setting, formal or
informal, and can be used to resolve a wide range of disputes, including business deals, labor
disputes, and family issues.

Mediation, on the other hand, is a form of dispute resolution in which a neutral third party, the
mediator, facilitates communication between the parties in order to help them reach a
mutually acceptable solution. Mediation is a voluntary process, and the mediator does not have
the power to impose a solution on the parties. The mediator's role is to help the parties
communicate effectively, identify the issues at hand, and explore possible solutions.

While negotiation and mediation share some similarities, there are also some key differences
between the two.2

Role of the third party.

in negotiation, there is no third party involved, and the parties negotiate directly with each
other. In mediation, on the other hand, there is a third party involved, who acts as a facilitator
and helps the parties reach a mutually acceptable solution. In negotiation, there is no third
party involved, and the parties negotiate directly with each other. In mediation, on the other
hand, there is a third party involved, who acts as a facilitator and helps the parties reach a

1
Forberg J. & Taylor A., Comprehensive Guide to Resolving Conflict without Litigation 1984, P. 7

2
Menkel-Meadow, C., “Alternative Dispute Resolution” in Kritzer, H.M. (ed.), Legal Systems of the World: A Political, Social
and Cultural Encyclopedia, 2002.

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mutually acceptable solution. The mediator does not have the power to impose a solution on
the parties, but rather facilitates communication and negotiation.

Level of formality.

Negotiation can take place in any setting, formal or informal, and can be as simple or complex
as the parties desire. Mediation, on the other hand, is usually a more formal process, with
specific rules and procedures that must be followed. Negotiation can take place in any setting,
formal or informal, and can be as simple or complex as the parties desire. Mediation, on the
other hand, is usually a more formal process, with specific rules and procedures that must be
followed. Mediation often takes place in a neutral location, and the parties are expected to
follow the rules and procedures set out by the mediator.

The outcome.

In negotiation, the parties are free to agree on any solution that they deem acceptable, and
there is no requirement for the parties to reach a mutually acceptable solution. In mediation,
however, the parties are encouraged to reach a mutually acceptable solution, and the mediator
helps facilitate this process. The goal of mediation is to find a solution that both parties can
agree on.

Power to Impose a Solution

In negotiation, the parties negotiate directly with each other and have the power to agree or
disagree on a solution. In mediation, the mediator does not have the power to impose a
solution on the parties, and the parties have the final say in the outcome. This lack of power to
impose a solution on the parties is one of the key differences between negotiation and
mediation.3

Similarities between Negotiation and Mediation4

Voluntary Process
3
Forberg J. & Taylor A., Comprehensive Guide to Resolving Conflict without Litigation 1984, Pp 1-7

4
Alternative Dispute Resolution Practitioner Guide Centre for Democracy in Governance, Washington, 1998.

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One of the main similarities between negotiation and mediation is that they are both voluntary
processes. The parties involved have the option to participate or withdraw from the process at
any time. This voluntary nature of negotiation and mediation ensures that the parties are
willing to work towards a mutually acceptable solution.

Communication

Both negotiation and mediation involve communication between the parties involved in the
dispute. In negotiation, the parties communicate directly with each other, while in mediation,
the mediator facilitates communication between the parties. Effective communication is
essential in both negotiation and mediation, as it helps the parties to understand each other's
perspectives and interests.

Confidentiality

Another similarity between negotiation and mediation is that they are both confidential
processes. The details of the negotiation or mediation process, as well as the outcome, are kept
confidential. This confidentiality ensures that the parties can discuss their interests and
concerns freely without fear of repercussions.

Mutually Acceptable Solution

Both negotiation and mediation aim to reach a mutually acceptable solution that satisfies the
interests of both parties. In negotiation, the parties are free to agree on any solution that they
deem acceptable, while in mediation, the mediator helps the parties to reach a mutually
acceptable solution. This focus on a mutually acceptable solution is beneficial as it ensures that
both parties have a sense of ownership over the outcome.5

Negotiation and mediation are two important forms of dispute resolution that share some
similarities but also have some key differences. While negotiation involves direct
communication between the parties with the aim of reaching an agreement, mediation involves
a neutral third party who facilitates communication and helps the parties reach a mutually

5
Shamir, Y., Alternative Dispute Resolution Approaches and their Application. UNESCO, 2003.

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acceptable solution. Therefore, I disagree with the statement that negotiation and mediation
are simply two sides of the same coin.

In support of the argument, the following are the advantages and disadvantages between
negotiation and mediation6

Advantages of Mediation

Neutral Third Party

Mediation involves a neutral third party who can help the parties to communicate effectively
and reach a mutually acceptable solution. The mediator can provide an objective perspective
and help the parties to identify issues that they may not have considered.

Confidentiality

Mediation is a confidential process, which allows the parties to discuss their interests and
concerns freely without fear of repercussions. This confidentiality can help to build trust
between the parties and encourage them to be more open and honest in their communication.

Cost-Effective

Mediation is often a more cost-effective process than litigation or arbitration. Mediation can be
completed more quickly than other forms of dispute resolution, which can save time and
money.

Preservation of Relationships

Mediation can help to preserve relationships between the parties involved in the dispute. The
mediator can help the parties to communicate effectively, which can improve their
understanding of each other's perspectives and interests.

Disadvantages of Mediation7

6
Shamir, Y., Alternative Dispute Resolution Approaches and their Application. UNESCO, 2003.

7
Roger Dawson,"The Power of Negotiation",2002

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No Guarantee of Outcome

Mediation does not guarantee a specific outcome, and the parties may not be able to reach a
mutually acceptable solution. If the parties are unable to reach an agreement, they may need
to pursue other forms of dispute resolution.

Limited Power of the Mediator

The mediator does not have the power to impose a solution on the parties, and the parties
have the final say in the outcome. This lack of power can make it difficult for the mediator to
facilitate communication and reach a mutually acceptable solution.

Lack of Formality

Mediation is a less formal process than litigation or arbitration, which may make it difficult for
some parties to take the process seriously. This lack of formality can also make it difficult to
enforce any agreements reached during the mediation process.

Advantages of Negotiation

Direct Communication

Negotiation involves direct communication between the parties involved, which can help to
build trust and improve relationships between the parties.

Flexibility

Negotiation is a flexible process that can be tailored to the specific needs of the parties
involved. The parties can negotiate directly with each other and have the freedom to agree on
any solution that they deem acceptable.

Cost-Effective

Negotiation is often a more cost-effective process than litigation or arbitration. Negotiation can
be completed more quickly than other forms of dispute resolution, which can save time and
money.

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Preservation of Relationships

Negotiation can help to preserve relationships between the parties involved in the dispute. The
parties can negotiate directly with each other, which can improve their understanding of each
other's perspectives and interests.

Disadvantages of Negotiation8

Power Imbalance

Negotiation may not be a suitable form of dispute resolution if there is a significant power
imbalance between the parties involved. In some cases, one party may have more bargaining
power than the other, which can make it difficult to reach a mutually acceptable solution.

Lack of Formality

Negotiation is a less formal process than litigation or arbitration, which may make it difficult for
some parties to take the process seriously. This lack of formality can also make it difficult to
enforce any agreements reached during the negotiation process.

No Guarantee of Outcome

Negotiation does not guarantee a specific outcome, and the parties may not be able to reach a
mutually acceptable solution. If the parties are unable to reach an agreement, they may need
to pursue other forms of dispute resolution.

Conclusion

In conclusion, negotiation and mediation are two forms of dispute resolution that share some
similarities but also have some key differences. Mediation involves a neutral third party who
facilitates communication and helps the parties reach a mutually acceptable solution, while
negotiation involves direct communication between the parties with the aim of reaching a
mutually acceptable solution. The advantages and disadvantages of each form of dispute

8
Crown. M, "Negotiation, a dispute resolution method", 2007.

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resolution should be carefully considered when choosing the most appropriate form of dispute
resolution for a particular situation.

REFERENCE

Forberg J. & Taylor A., Comprehensive Guide to Resolving Conflict without Litigation 1984

8
Alternative Dispute Resolution Practitioner Guide Centre for Democracy in Governance,
Washington, 1998.

Menkel-Meadow, C., “Alternative Dispute Resolution” in Kritzer, H.M. (ed.), Legal Systems of
the World: A Political, Social and Cultural Encyclopedia, 2002.

Shamir, Y., Alternative Dispute Resolution Approaches and their Application. UNESCO, 2003.

Roger Dawson,"The Power of Negotiation",2002

Crown. M, "Negotiation, a dispute resolution method", 2007.