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Conflict Managment

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Conflict Management ­HRM624
VU
Lesson 35
LAW AND ETHICS OF MEDIATION I
Quotation
In civilized life, law floats in a sea of ethics.
Earl Warren
Why is mediation Regulated?
The regulation of mediation can be best understood as a series of efforts designed to protect and preserve
the essence of the process, to ensure its effectiveness, and to ensure that, as it is used, other legal rights and
obligations are not damaged. The more radical wing of the ADR movement argues that the presence of the
invisible veil keeps us from truly realizing the promise of mediation.
·  To preserve the essence of mediation
·  To ensure the effectiveness of mediation
·  To protect other legal rights
Mediation is a legal event. Mediation technique is influenced by psychological considerations and sometimes
resembles psychotherapy. But situation is slowly changing as mediation becomes more widespread and
institutionalized.
Preserving the Essence of Mediation
It is easy to determine whether there is a third-party intermediary involved in a dispute resolution process,
although whether a given intermediary is correct to refer to his or her services as mediation is sometimes
controversial. The second element of the essence of mediation, the need for self determination, has been
the topic of far more controversy among both mediation scholars and policy makers. Mediation is a diverse
process. It can be almost unrecognizable to a colleague, so it can be abused.
Characteristics of mediation:
Following are the characteristics of mediation.
1. A third-party mediator must be involved
2. Mediation is characterized by disputants' self-determination
3. Intermediary involved
4. Little regulation exists to control mediator "truth is advertising"
5. Controversy among both mediation scholars and policymakers
6. Self-determination is regarded as "the fundamental principle of mediation"
7. Participation of Mediator
8. Impartiality and neutrality
9. Truth and advertising and client-informed consent to the process
10. Client self-determination
11. Need for informed consent
12. Distinguishing of mediation from evaluative ADR
13. Preservation of Mediation as a Non-adversarial Process
14. Confidentiality in mediation
Ensuring the effectiveness of mediation
Mediation is also regulated to ensure its effectiveness, however, here also controversy and uncertainty
abound. The most important regulatory issue that springs from the motivation to ensure effectiveness
relates to the confidentiality of mediation. It is the consensus of most mediation scholars and practitioners
that, for mediation to work well, it must be confidential.
Effectiveness in mediation is also promoted through the regulation of mediator credentialing, competence,
and conduct.
1. Effectiveness depends upon personal attitudes
2. Short term goals will promote evaluative mediation
3. Long term goals will promote facilitative mediation
4. Confidentiality: most unsettled area of mediation law
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Conflict Management ­HRM624
VU
6.
Perspectives on effectiveness: short- vs. long-term and broad vs. narrow
7.
Confidentiality
8.
Enforceability of settlement
9.
Constructing settlement agreement
10.
Good-faith participation
11.
Ensuring competent mediators:
Protecting other Rights:
The third major reason for the regulation of mediation is to protect the rights held by the participants in
mediation and others affected by the process.
1. Due process consideration
2. Safety issues
3. Conflict with other rights
1. Due Process Considerations:
Limitations on coercion in mediation; informal consent; lifting of confidentiality to protect the rights to give
evidence in other proceedings are some of the considerations.
2. Safety Issues:
Mediation in abuse situations is concerned with the safety issues.
3. Conflict with Other Rights:
Confidentiality of mediation involving the government: effects of laws rendering proceedings open to the
public
Legal Issues in Mediation
The need to preserve essential aspects of the mediation process, and to preserve and promote the
effectiveness of mediation, has led to efforts to regulate mediation in a number of areas.
Confidentiality
Most kinds of mediation are held in a confidential setting; that is, secrets revealed or communications made
in mediation can't be shared with others or used in litigation. Confidentiality is invoked because it is
believed that disputants won't feel as free to communicate openly with one another if they believe that what
they say or reveal might be used against them. Moreover the quality of mediation as a cooperative process
could be compromised if disputants believed that communications in mediation would be the subject of
discovery or trial tactics later on. Additionally, confidentiality is needed to preserve the neutrality of the
mediator: disputants participating in mediation need to be reassured that the mediator will not testify against
them later. Early in the mediation movement, there were two principal sources of confidentiality in
mediation: law providing for the inadmissibility of compromise negotiations and specific contracts
specifying that mediation be confidential.
Waiver of Confidentiality
Statutes and court rules, as interpreted by decisional law, provide for waiver of confidentiality in particular
circumstances.
1. Consent of the participants
2. Mediator malpractice or malfeasance claim or defense
3. Protection of mediation process
4. Matter to be resolved was not confidential to begin with
5. Evidence of a crime or child abuse/neglect
6. To uphold the administration of justice (more critical need to provide justice in another case)
7. Confidentiality in conflict with another explicit law
Summary
Mediation can be practiced in a given frame of law. The rules to govern mediation are derived from ethics
which prevail in the pertinent society. Mediation should be practiced with the provisions of law to promote
the essence of mediation, effectiveness of mediation, to protect legal rights, and to promote justice in
society at large.
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Table of Contents:
  1. INTRODUCTION TO CONFLICT:Dispute, Legal Dispute, Call the police
  2. DISPUTE RESOLUTION 1:Positive affect in Negotiation, Alternative Dispute Resolution
  3. DISPUTE RESOLUTION II:Adjudication, Litigation, Mediation-Arbitration
  4. PRECONCEPTIONS ABOUT CONFLICT I:Pedagogical development, Pressures against Innovation
  5. PRECONCEPTIONS ABOUT CONFLICT II:Cultural beliefs about interpersonal conflict, Why strategies of change fail
  6. CONFLICT DIAGNOSIS:Who Needs to Know About Conflict Diagnosis?, Steps in Conflict Diagnosis
  7. RECURRENT THEMES IN CONFLICT DIAGNOSIS I:The Seven Steps of Social Behavior, Seven steps to diagnose conflict
  8. RECURRENT THEMES IN CONFLICT DIAGNOSIS II:Themes of Conflict Diagnosis
  9. DESCRIBING THE CONFLICT I:Description of Conflict, Identifying Interpersonal Conflict
  10. DESCRIBING THE CONFLICT II:Step 1 for Conflict Diagnosis, interpersonal or intrapersonal
  11. SOURCES AND CAUSES OF CONFLICT I:Main Sources of Conflict, Discussing major sources of conflict
  12. SOURCES AND CAUSES OF CONFLICT II
  13. INTEREST ANALYSIS I:Analyzing your interests, Analyzing the other disputant’s interests
  14. INTEREST ANALYSIS II:What are interests?, Tips for Interest Trees
  15. INTEREST ANALYSIS II:Principles and values, Basic Human Needs
  16. ASSESSING THE CHARACTER OF THE CONFLICT I, Premises of Deutsch’s Theory
  17. ASSESSING THE CHARACTER OF THE CONFLICT II:Techniques to transform competitive conflict into cooperative
  18. TRUST AND ITS SIGNIFICANCE I:What is Mistrust,Trust and business,Three levels of trust
  19. TRUST AND ITS SIGNIFICANCE II:Advantages of high trust level, Building of trust
  20. ASSESSING IMPEDIMENTS TO RESOLVE THE CONFLICT I:Motivation to seek vengeance, Mistrust
  21. ASSESSING THE IMPEDIMENTS TO RESOLVING THE CONFLICT II:Disempowered Disputant, Unpleasant Disputant
  22. ASSESSING THE NEGOTIATING STYLE I:Dual Concern Model, Dominating or competition style
  23. ASSESSING THE NEGOTIATING STYLE:Dual Concern Model, Tactics Used In Integrating
  24. ASSESSING POWER AMONG DISPUTANTS:Conflict and Power, Kinds of power in the Relationship Domain
  25. ASSESSING POWER AMONG DISPUTANTS II:Sources of Relationship Power, Context and Power
  26. POWER, CONFLICT, AND BATNA III:Role of Third Party in BATNA, Dealing with Power Imbalance
  27. STEREOTYPES, DIVERSITY, AND CONFLICT I:Stereotyping, Stereotyping in Interpersonal Conflict
  28. STEREOTYPES, DIVERSITY, AND CONFLICT:Categories of Diversity Issues, Seven Mental Processes to Prove Stereotypes
  29. STEREOTYPES, DIVERSITY AND CONFLICT III:Individual Difference and Social Category, Cultural differences in values
  30. MEDIATION I:When is mediation required, Processes Related to Mediation, Product of Mediation
  31. MEDIATION II:Important distinguishing factors, More Advantages and Disadvantages of Pure Mediation
  32. ADVANTAGES AND DISADVANTAGES OF MEDIATION I:Efficiency Consideration, Conflict Management and Prevention
  33. ADVANTAGES AND DISADVANTAGES OF MEDIATION II:Quality of Consent, Effects on the parties to mediation
  34. PROCESS OF MEDIATION:Stages of Mediation, Facilitative tactics in mediation
  35. LAW AND ETHICS OF MEDIATION I:Characteristics of mediation, Confidentiality
  36. LAW AND ETHICS OF MEDIATION II:Role of ethics in mediation, 8 Dimensions of Ethics in Mediation
  37. ARBITRATION I:Ways to Resolve Conflict, Advantages of Arbitration, Disadvantages of Arbitration
  38. ARBITRATION II:Varieties of Arbitration, Process of Arbitration, Contents of Arbitration Act
  39. NON BINDING EVALUATION:Disadvantage, Varieties of Non-binding Evaluation
  40. NON BINDING EVALUATION II:Varieties of Non-binding Evaluation, Advantages and disadvantages of Non-binding Evaluation
  41. MIXED AND MULTIMODAL DISPUTE RESOLUTION:Six System Design Principles, Extensions of Dispute Systems Design
  42. POWER TOOLS AND MAGIC KEYS I:Introduction, Necessity of conflict diagnosis, Using conflict diagnosis
  43. POWER TOOLS AND MAGIC KEYS II:Proposed Contents of a Clients’ Interview, Impediments to use facilitative mediation
  44. PANCHAYAT, LOCAL GOVERNMENT SYSTEM, AND ADR, Definitions of Panchayat, Definition of Jirga
  45. SUMMARY AND MESSAGE OF THE COURSE:Definitions of conflict, Negotiation, Meditation, Adjudication