Executive summary
Compromise approaches have been increasingly advocated as effective processes to address complex environment and sustainable development issues regarding arbitration. Compromise is a basic negotiation process in which both parties give up something that they want in order to get something else they want more. Compromises usually occur in win-lose situations — when there is a fixed pie to be divided up, and whatever one side gets, the other side loses. In compromise situations, neither side gets all of what they really want, but they each make concessions in order to reach an agreement that is acceptable to both. Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.
Introduction
Compromise is a basic negotiation process in which both parties give up something that they want in order to get something else they want more. Compromises usually occur in win-lose situations[1] — when there is a fixed pie to be divided up, and whatever one side gets, the other side loses. In compromise situations, neither side gets all of what they really want, but they each make concessions in order to reach an agreement that is acceptable to both.
Negotiations are part of all relationships. Businessmen, Associates, Friends, family, co-workers all negotiate and compromise. We need to learn to negotiate without emotion for best results. An essential part of negotiating is controlling your emotions. Don’t let people push your hot buttons[2].
Elements of compromise
A mutual agreement[3] to refer matters in dispute to the decision of arbitrators[4]. A settlement by arbitration or by mutual reached by concession on both sides; a reciprocal abatement of extreme demands or rights, resulting in an agreement.
“There are five elements of compromise which are –no slave’s trade in dc, California is free-slave, population solvent, and taxes were paid by govt. fugitive slave act”. Compromise is a way to settle disputes in any industry. The tool of negotiation is used by families, businesspeople and attorneys in order to reach a solution, settlement or end a long standoff between factions. Compromise is key to these successful negotiations. To negotiate, you must have two or more parties dependent on one another. The parties must be willing to negotiate and have something to leverage that appeal to the other side, and they must also have the authority to make a decision, deadline and final agreement.
There are two principal ways to negotiate a compromise. The first is for the parties to go back and forth with offers and concessions until they meet somewhere in the middle. This usually takes place around a single issue, such as the price of an item. When there are multiple issues to be negotiated, then parties may make additional
concessions. The basic idea is that each party gives up something that the other party values but that they themselves do not care about.
Process or result
However, some things cannot be compromised because they cut to the core of an individual’s or group’s identity or survival. Two things that usually are not compromised are values and fundamental human needs. Human needs are the material and nonmaterial necessities of life: food, shelter, water, a sense of security, identity, belonging, and independence. When it comes to disputes over any of these necessities, people usually will not compromise either.
In negotiating we must discuss our thoughts to get clear what each of us mean. (In all communication, it’s the meaning that’s so important. We’re not always able to choose just the right words right away). And, finally, if we need to agree on a solution, then we have to compromise. One party gives some and the other party gets some. (We don’t always get exactly what we want. As adults, we understand that.) There’s a reward for compromising: our twosome team remains solid. Partners who give respect (value the other person enough to listen carefully), who negotiate (work to find areas of agreement), and then, who compromise (are willing to make concessions) are relationship-savers.
Difference between compromise and arbitration
Mediation[5] is a process by which both sides of a conflict are assisted into finding a middle term, mediation is sometimes a negotiation with the difference that it is supervised by a person or authorities empowered to oversight and lead the process.
When mediation fails, then the litigation or conflict may be placed under arbitration. This process is fully directed by a person or authority empowered as arbitrator who has in fact the same powers of a judge but limited to the conflict in question. Arbitration is not directed to find a middle term to be agreed by the sides but it is directed to conclude and impose a final decision or resolution of the conflict in the fairest possible way following justice and after hearing and studying the versions of both sides.
During mediation the sides in conflict have part in the final decision while in arbitration they can only present their claims but have no part in the final decision.
Arbitration is commonly known as Alternative Dispute Resolution (ADR). It’s a process where both sides come together and agree to follow and respect the decision of the arbitrator. The arbitrator is usually an attorney familiar with the field of law being decided. The decision of the arbitrator is legally binding against both parties.
Mediation is the process by which a neutral third party intervenes between two conflicting parties to promote reconciliation, settlement, or compromise. Mediation is an effective tool for resolving almost all civil (non-criminal) disputes.
Arbitration is an alternative means of setting a dispute by impartial persons without proceeding to a court trial. It is sometimes preferred as a means of setting a matter in order to avoid the expense, delay, and acrimony of litigation.
Mediation is a non adversarial method of alternative dispute resolution (ADR) in which a neutral third party helps resolve a dispute. The mediator does not have the power to render a decision and the matter or order an outcome.
Mediation provides disputing parties with the opportunity to identify and cope with divisive interpersonal issues not originally thought to be part of the dispute. Unlike an arbitrator, a mediator does not have the power to render a decision, and determine an award.
Conclusion
Arbitration is an alternative means of settling a dispute by impartial persons without proceeding to a court trial. It is sometimes preferred as a means of settling a matter in order to avoid the expense, delay, and acrimony of litigation. There is no discovery and there are simplified rules of evidence in arbitration.
Mediation is a non-adversarial method of alternative dispute resolution (ADR) in which a neutral third party helps resolve a dispute. The mediator does not have the power to render a decision on the matter or order an outcome. If a satisfactory resolution cannot be reached, the parties can pursue a lawsuit. On the face of it ‘Arbitration’ is just like a regular court with certain exceptions.
An Arbitrator derives his jurisdiction through the agreement of the parties. He has to judiciously decide on matters coming within the scope of the agreement. He has to follow the procedural law and rules laid down in the agreement. His decision on matters in Issue is called an “Award”. An Arbitrators Award can be challenged in the court of law. However in most of the Jurisdictions an Award cannot be appealed to on grounds of facts.
Mediation is much more informal in nature and a Mediator normally encourages the parties to arrive at a compromise on their own. He doesn’t pass any orders etc. The parties finally draw a settlement or compromise agreement with the help and advice of the Mediator and file it in the Court of Law for execution. The final settlement cannot be challenged in a court of law except for fraud & misrepresentation.
Bibliography
http://beyondintractability.colorado.edu/essay/compromise/?nid=1277
Freehling, William W. The Road to Disunion. New York: Oxford University Press, 1990.
Hamilton, Holman. Prologue to Conflict: The Crisis and Compromise of 1850. Lexington: University of Kentucky Press, 1964.
Holt, Michael F. The Political Crisis of the 1850s. New York: Norton, 1983.
Potter, David Morris. The Impending Crisis, 1848–1861. Edited and completed by Don E. Fehrenbacher. New York: Harper and Row, 1976.
Remini, Robert V. Henry Clay: Statesman for the Union. New York: Norton, 1991
[1] Any situation or game that does not end in a draw or stalemate. For example, a hunter kills a wolf and it’s a win for the hunter but a loss for the wolf’s pack. Another example is that if an argument is settled unfairly is in one side’s favor only, for instance a border dispute between two countries. There are other types of situations like win-lose situations.
[2] Everyone has “hot buttons.” They’re your tender spots, the places where you’re most sensitive, the points where you get irritated, or hurt, or angry, and have to respond. The trick to preventing them from messing up your day is awareness: The more aware you are of what rattles the bars of your cage, the more you’ll be able to catch yourself before you do any damage. If you don’t, you’ll be doing cold turkey for a while as you try to recover from some bad mistakes.
[3] The concept of mutual agreement spans the spectrum of meanings and complexity. A mutual agreement can be as informal as you and your partner agreeing to go to the ice cream parlor for a cone. If you’ve been married, you have experienced firsthand what a mutual agreement is all about. Two parties enter the legally binding contract of marriage. If the marriage doesn’t work, some states permit divorce by mutual consent, as well.
[4] Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. Other forms of ADR include mediation (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts.
[5] Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties. A third party, the mediator assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).