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Conflict Managment

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Conflict Management ­HRM624
VU
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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Conflict Management ­HRM624
VU
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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Conflict Management ­HRM624
VU
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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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