MEDIATION I:When is mediation required, Processes Related to Mediation, Product of Mediation

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Conflict Management HRM624

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."

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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.

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There is also much blurring in practice between facilitative and evaluative mediation. Many mediator

practice midway along this continuum, and some mediators jump from facilitative to evaluative approaches

based on what they think will promote the goals of the mediation.

Processes Related to Mediation

Settlement conference or meeting court process in which a judge moderates a meeting with the

disputants' lawyers in which the group organizes a case headed for trial. It helps to soften the conflict.

Facilitation is generally, a process in which a mediator helps to prepare for a complex negotiation.

Conciliation has no set definition. Sometimes it is used to describe mediation, sometimes nonbinding

evaluation and sometimes facilitation.

Settlement Conference

A settlement conference is a judicially created process presided over by a judge. Settlement conferencing is

used for legal disputes filed in court and headed for trial.

Facilitation

A process in which a neutral third party, or panels of neutrals, helps prepare for complex negotiation.

Typically, facilitation is used if an interpersonal conflict involves multiple, complex parties and issues.

Conciliation

Applied to numerous processes conceptually related to mediation. Sometimes the term applied to mediation

itself, sometimes it is applied to facilitation; sometimes it is applied to nonbinding evaluation.

Results of Mediation

Settlement may or may not come about as disputants may not agree. Settlement may be partial or total. It

may be permanent or interim/temporary. Settlement is usually in written form.

The mediator may write a "memorandum of agreement" and lawyers can formalize it.

Some mediators draft agreements themselves. Settlements reached in mediation are enforceable contracts,

just as they are in any other negotiation process. Mediation may mention special enforceability issues. Since

mediation is confidential, there are special concerns that involve proof of or defenses to a mediated

agreement.

Product of Mediation

If the disputants reach an agreement of some sort in mediation, some mediators provide the parties with the

written memorandum of settlement, memorandum, memorandum of agreement, or memorandum of

understanding (MOU).

This document is not intended to be binding but, instead, is "translated" by the parties' legal advocates into

a contract of settlement, or stipulation; or, if the mediation is of a case filed in court, by the judge into an

order or judgment.

Summary

We learnt about mediation. This is needed when either negotiation fails or negotiation is not possible due to

positional gap. Mediation is done through a third party who is neutral and just brings the disputants to settle

the dispute without going to the expensive court procedures.

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