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Conflict Managment

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Conflict Management ­HRM624
VU
Lesson 36
LAW AND ETHICS OF MEDIATION II
Quotation
'Golden Rule'-- 'do unto others as you would have them do unto you'.
Law of mediation is being developed but ethics are important in the initial stages. It seems as role of ethics
neglected until now. Mediation is non-adversarial alternative to dispute resolution. Mediation is not a forum
for misbehavior. Failure of mediation may lead to adjudication; hence mediation must work under the
framework of appropriate law. Mediation is flexible.
·
Keeping promises as a process or consequence
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Mediation is based on ethics and on which law is based. Ethics change with time, places and
communities.
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Right act is one where we are able to maximize the good
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Society operates within the blinders and distortions created by the invisible veil.
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Some people value actions lies in the motives rather than the consequences.
·
Mediation is a flexible process. Any mediator has to modify the process and approach to
understand and resolve the issue. The mediators are encouraged to be creative and tailor each
mediation to meet the needs of all the parties to a dispute.
·
The purpose of ethics in mediation is to handle emerging issues while doing mediation. Mediation
is a voluntary, non-binding process involving a neutral third party to help the disputants to reach a
mutually beneficial agreement to resolve the issue.
·
A mediator helps the disputants reach an agreement by facilitating communication, promoting
understanding, assisting them in identifying and exploring issues, interests and possible bases for
agreement, and in some matters, helping parties evaluate the likely outcome in court or arbitration
if they cannot reach settlement through mediation.
Role of ethics in mediation
The role of ethics in negotiation has been neglected. Often when people talk about what is ethical they
immediately talk about what they feel people should do and how we can persuade them to come round to
our way of thinking.
However, this sort of discussion presumes certain conventions of what is right and wrong without looking
at the theories behind these connotations of rights and wrong.
Negotiation, and mediation, occurs between people. It will vary with the disposition and traits of the parties
involved. The ethical beliefs will color perceptions and approaches to bargaining and results of the
mediation.
In all cases a mediator needs to pay attention to the values that the parties express. Mediation must be
dedicated to the principle that all disputants have a right to negotiate.
Kevin Gibson, Department of Philosophy University of Colorado Boulder
Mediation is Not
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toothless
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just a compromise
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a bar to arbitration or litigation
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what lawyers or managers do `all the time'
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a waste of time and money if it fails
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yet another cost to the unfortunate parties
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a sign of weakness
·
to avoid courts
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to disclose your hand necessarily
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to be risky
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a kind of counseling
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Conflict Management ­HRM624
VU
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 of the participants to a dispute
The authors present these model standards of conduct for mediators to serve three major functions: as a
guide for the conduct of mediators, to inform the mediating parties, and to promote public confidence in
mediation as a process for resolving disputes.
8 Dimensions of Ethics in Mediation
Following are the 8 dimensions of ethics in mediation.
1. Self-determination
2. Impartiality
3. Conflicts of interest
4. Competence
5. Confidentiality
6. Quality of the process
7. Advertising and solicitation
8. Fees
1. Self-determination: A mediator shall recognize that mediation is based on the principle of self-
determination by the parties. Self-determination requires that the mediation process rely upon the ability of
the parties to reach a voluntary, un coerced agreement. Any party may withdraw from mediation at any
time.
2. Impartiality: A mediator shall conduct the mediation in an impartial manner. A mediator shall mediate
only those matters in which he or she remains impartial and evenhanded. If at any time the mediator is
unable to conduct the process in an impartial manner, the mediator is obligated to withdraw. A mediator
should guard against partiality or prejudice based on a party's personal characteristics, background or
performance at the mediation.
3. Conflicts of interest: A mediator shall disclose all actual and potential conflicts of interest reasonably
known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to
retain the mediator. The need to protect against conflict of interest also governs conduct that occurs during
and after the mediation. A conflict of interest is a dealing or relationship that might create an impression of
possible bias. Without the consent of all parties, a mediator shall not subsequently establish a professional
relationship with one of the parties in a related manner, or in an unrelated manner under circumstances that
would raise legitimate questions about the integrity of the mediation process. Pressure from outside the
mediation process should never influence the mediator to coerce the parties to settle.
4. Competence: A mediator shall mediate only when the mediator has the necessary qualifications to satisfy
the reasonable expectations of the parties. Mediators should have information available to the parties
regarding their relevant training, education, and experience. The personal competence requires appropriate
knowledge about personal, local, and universal human values.
5. Confidentiality. A mediator shall maintain the reasonable expectations of the parties with regard to
confidentiality. The parties' expectations of confidentiality depend on the circumstances of the mediation
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Conflict Management ­HRM624
VU
and any agreements they may make. The mediator shall not disclose any matter that a party expects to be
confidential unless given permission by all parties or unless required by law or other public policy. If the
mediator holds private sessions with a party, the nature of these sessions with regard to confidentiality
should be discussed prior to undertaking such sessions. In order to protect the integrity of the mediation, a
mediator should avoid communicating information about how the parties acted in the mediation process,
the merits of the case, or settlement offers.
6. Quality of the process: A mediator shall conduct the mediation fairly, diligently, and in a manner
consistent with the principle of self-determination by the parties. There should be adequate opportunity for
each party in mediation to participate in the discussions. The parties decide when and under what
conditions they will reach an agreement or terminate mediation.
7. Advertising and solicitation: A mediator shall be truthful in advertising and solicitation for mediation.
Advertising or any other communication with the public concerning services offered or regarding the
education, training, and expertise of a mediator shall be truthful. Mediators shall refrain from promises and
guarantees of results.
8. Fees: A mediator shall fully disclose and explain the basis of compensation, fees and charges to the
parties. The parties should be provided sufficient information about fees at the outset of a mediation to
determine if they wish to retain the services of a mediator. A mediator should not enter into a fee agreement
that is contingent upon the result of the mediation or the amount of the settlement. A mediator should not
accept a fee for referral of a matter to another mediator or any other person.
Summary
Ethics and law of mediation is being developed. Mediation as a practice or service can develop only if it is
practiced under the umbrella of appropriate ethics and the provisions of law. The origin of conflict may
have roots in the diversity of values adhered by the disputants and the appreciation of this dimension of
conflict will help resolve conflicts amicably.
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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