Understanding Mediation: A Consensual Approach to Dispute Resolution, Study notes of Conflict Management

Download Understanding Mediation: A Consensual Approach to Dispute Resolution and more Study notes Conflict Management in PDF only on Docsity! 104 Lesson 30 MEDIATION I Quotations “A pessimist sees the difficulty in every opportunity; an optimist sees the opportunity in every difficulty.” Winston Churchill It's a well-known proposition that you know who's going to win a negotiation: it's he who pauses the longest. Robert Holmes à Court (1937 - 1990) Australian entrepreneur. In this lecture we will try to explore and study the following points: 1. What mediation is and how it differs from other ADR processes. 2. The difference between facilitative and evaluative mediation. 3. That the product of mediation, should the disputants reach agreement, is a valid, binding, and enforceable contract. 4. The uses of mediation today. 5. The five basic varieties of mediation and their goals, characteristics, advantages, and disadvantages. 6. The roles played in mediation by mediators, disputants, disputants’ lawyers, paralegals, constituents and stakeholders, and experts/consultants. Mediation Mediation is second class justice. It is a type of assisted negotiation that uses a third party (or panel of third parties) to help disputants negotiate their settlement. This third party, who is called the mediator, is typically impartial with respect to the disputants and neutral as to the settlement reached. In USA, there is a huge burden of work on courts. To alleviate that burden, ADR movement has been started in the US. An emerging and increasingly popular form of ADR is mediation. Although interest in and use of ADR has grown significantly in the past decade, it is still in a relatively early stage of development. In general, the operation of mediation aims to facilitate the development of consensual solutions by the disputing parties. The mediation process is overseen by a non-partisan third party, the mediator, whose authority rests on the consent of the parties that she facilitates their negotiations. The mediator has no independent decision-making power, or legitimacy, beyond what the parties voluntarily afford her.... While mediators use many strategies and techniques to encourage the parties to reach an agreement, for example helping to generate so-called 'objective criteria' which both parties recognize as valid, and in some cases assisting them with specific provisions of any settlement arrangement, the final result of a mediated agreement must be legitimized by disputants. Depending on his or her approach and style, the mediator can take an active role in the process or remain more passive, only intervening when necessary to facilitate communication, clarify, or focus the participants on the important issues at hand. The function of the mediator is determined in part by the desires of the parties and in part by the attitude of the individual mediator. Some mediators propose settlement terms and attempt to persuade parties to make concessions. Other mediators work only with the party-generated proposals and try to help parties realistically assess their options. Most mediators will provide an environment in which the parties can communicate constructively with each other and assist the parties in overcoming obstacles to settlement. Legal counsel can be present in the mediation, but they are often encouraged to take a less active role, allowing the parties to dialogue and negotiate themselves. Further, the procedure of the mediation itself is primarily controlled by the parties' mutual agreement (e.g. over confidentiality agreements, the use of caucusing, etc.) with assistance from the mediator. One function the mediator can perform in the collective bargaining situation is that of reminding the parties that their negotiations constitute a cooperative enterprise and that one does not necessarily make a gain for himself simply because he denies to the other fellow something he wants. "The rule must be that you give, so far as is possible, what is less valuable to you but more valuable to the receiver; and you receive what is more valuable to you and less valuable to the giver." docsity.com 105 Resolution of the dispute, like negotiation, is determined entirely by the participants themselves through mutual agreement - no result will be imposed on them by the mediator. Although the mediator is usually paid for his or her services, a successful mediation will invariably save all parties money on further litigation. Ultimately, in theory at least, what is common to mediation as it is used in many different contexts is that the outcome is consensual rather than imposed and the solution fashioned by the parties themselves rather than by a third party. Mediation (Important points to remember) 1. A kind of facilitated or assisted negotiation process. 2. Mediation is done through a third-party neutral person. 3. The mediator’s main role is to assist the disputants in negotiating or in coming to an agreement. 4. However, the disputants retain the power to conflict resolution. 5. Mediation is a type of assisted negotiation that uses a third party (or panel of third parties) to help disputants negotiate their settlement. This third party, who is called the mediator, is typically impartial with respect to the disputants and neutral as to the settlement reached. When is mediation required When interpersonal conflict occurs, the most common approach to resolving it is negotiation – an interplay and a dialogue between the disputants and their representatives aimed at resolving the conflict. If negotiation does not resolve the conflict, and if the conflict involves legal issues, litigation is the only option many disputants see as recourse. It should be evident from previous lectures that negotiation offers many benefits over litigation. From the individual disputants’ perspectives, negotiation offers relationship preservation, the opportunity for creative problem solving, economy, time-saving, and a greater likelihood that the settlement will not unravel over time. Of course, a principal drawback to negotiation is that sometimes it fails to produce a settlement. Is there any way to preserve the advantages of negotiated settlement – particularly those of collaborating – when a negotiation leads to impasse or when it is anticipated that negotiation is not likely to settle the dispute? It is mediation. Related Concepts Facilitative mediation In facilitative mediation, the mediator’s primary function is to promote effective negotiation or dialogue. Facilitative mediators use techniques designed to promote effective negotiation as they view it: they lay ground rules for effective communication, help participants discover their interests and those of their counterparts, guide the disputants in the steps of cooperative negotiation, and intervene at all stages of the conflict cycle to keep the conflict as noncompetitive as possible. The strictly facilitative mediator assiduously avoids any evaluation of the merits or strengths of either disputant’s case. Evaluative mediation In evaluative mediation, the mediator’s primary function is to narrow the gap between the positions taken by the two disputants. Evaluative mediation assumes that negotiation will be a process of positional bargaining. Another way to think of this process is that evaluative mediation is a process of BATNA clarification. Nonbinding evaluation is different from evaluative mediation. Mediator will go beyond evaluation and broker settlement. In nonbinding evaluation, the process generally stops with evaluation. In evaluative mediation, the mediator works to narrow the gap between the demands of each disputant by expressly evaluating the merits, strengths, and weaknesses of each disputant’s position and by strategically communicating these evaluations to the disputants. In extreme forms of evaluative mediation, the centerpiece of the process may be a single evaluation of the likely outcome if the dispute is taken to court. An extremely evaluative mediation may closely resemble nonbinding evaluation: the neutral hears all sides of the issue and then issues an opinion regarding how the case might be decided if it were to be litigated. docsity.com