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Conflict Managment

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Conflict Management ­HRM624
VU
Lesson 31
MEDIATION II
Quotations
Only free men can negotiate; prisoners cannot enter into contracts. Nelson Mandela (1918 - ) South
African president and lawyer. Replying to an offer to release him if he renounced violence.
If you choose to be a negotiator, you eliminate worry about whether you deserve to be successful.
Theodore Zeldin (1933 - ) British historian.
Uses of Mediation Today
Mediation has been around a very long time and is used internationally. Mediation has been historically
present in Pakistan in social and business circles where shared value systems prevail. Costs of unresolved
disputing can also lure for mediation. In USA, mediation as a mainstream approach to legal disputing in
general first became common in the 1990s.
In the recent past, there is a substantial rise in the number of mediators. Accordingly, mediation is
becoming more adversarial. Some mediation proponents worry that this change will eliminate some very
important advantages of mediation as a non-adversarial process. Mediation is actually an ancient form of
conflict resolution, having been used in Eastern and African societies for thousands of years. Even today,
mediation is practiced all over the world. Elsewhere, mediation-like styles of dispute resolution are much
more predominant than they are in Western cultures, although mediation in non-Western nations is often
quite different from that in the West.
In the United States, mediation has been used for centuries in the commercial arena to maintain good
ongoing business relationships. Some religious groups and traditional Native American societies have also
relied on mediation style interventions to resolve disputes among members; moreover, historically the
handling of conflicts in many ethnic communities by powerful elders is very similar to mediation.
The past quarter-century marks the first time that a consensual and non-adversarial dispute resolution
process such as mediation has been tried on such a broad and mainstream basis in a time a society of
unprecedented social diversity. The 1990s saw a dramatic expansion of mediation into the legal mainstream
­ it is currently seen in the following areas:
Labor and employment relations, particularly in federal agencies ­ precipitated by a host of federal status
and regulation.
State civil litigation, particularly in major urban metropolitan areas such as Los Angeles, San Francisco,
and the District of Columbia
Federal Civil Litigation: as of 1996, fifty-one federal districts offered some form of court-connected
mediation (Gauvey 2001)
Divorce and Custody cases, both private and court-connected
Special education disputes among schools, service providers and parents of special-needs children
Neighborhood disputes
Disputes between disputants of different countries, in which the choice-of-law problems are too expensive
or difficult to sort out in court
Disputes involving consumer grievance against commercial entities
Out side the legal arena, in public and private schools to resolve conflicts and prevent violence by and to
students; those programs use students trained to use mediation and are called peer mediation.
Forms of Mediation
To understand how mediation works, when it is effective and what its advantages and disadvantages are, it
is important to understand the great diversity of mediation forms. In talking about the advantages and
disadvantages of mediation, it is important to realize that each type of mediation has its own distinct
characteristics, uses, strengths, and limitations.
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Important distinguishing factors
1. Is the process more facilitative or more evaluative?
2. Does the mediation deal narrowly with the presenting dispute, or deal with the entire
landscape of the disputants' relationship?
3. How much coercion is placed on the disputants to settle?
Triage mediation (court-connected process)
Triage mediation is believed to be relatively uncommon today. Formerly, it was widely seen in court systems
and was developed to divert large numbers of cases away from the trial system.
This sort of mediation is typically very brief and focused. The goal of triage mediation is to get the dispute
out of the court system as quickly as possible by seeking a quick settlement. The focus of triage mediation is
typically narrow ­ it is focused in the short term on this dispute because that is all that's needed to get the
case out of court.
The main advantage of triage mediation is that it's cheap, it's quick, and it clears court dockets. However,
triage mediation presents a number of significant problems (Beck & Sales 2000). Because its principal goal is
to save money and avoid court, mediators are often poorly trained and poorly and carry overly heavy
caseload.
Goal: to divert the dispute out of the system and obtain a quick and inexpensive settlement.
Focus: Focus is narrow. Process is usually highly evaluative and quite coercive.
Advantages: It is cheap and quick.
Disadvantages: It often uses poorly trained mediators and/or imposes overly heavy caseloads on
mediators. Because of pressures to divert large numbers of cases, mediators may be very coercive.
Outcome is less likely to respond to the needs of disputants and their constituents.
Advantage of psychological ownership of the settlement is lost.
Bargaining-Based Mediation
Bargaining-based mediation is an extremely common form of mediation. Sometimes it called concession-
hunting. It is the predominant style used in court-connected civil dispute mediation, as well as the mediation
of commercial, construction, and personal injury cases.
The primary goal of bargaining-based mediation is to attain a fair agreement through compromise. Lawyer
mediators are more likely to use this form of mediation than any other. The focus is usually narrow and the
process is typically evaluative.
Bargaining-based mediation is particularly good for cases in which there are highly divergent perceptions of
fact or law ­ because the divergent perceptions may be the most important impediment to settlement. It's
also good for cases involving highly complex legal issues, since lawyers tend to be closely involved in the
mediation process.
Because the process is evaluative, bargaining-based mediation tends to cause the disputants to become
increasingly position-bound. In other words, the focus is on each disputant's position and how successful
he or she is likely to be with it.
Goals, Advantages and Disadvantages of Bargaining-Based mediation
Goal: Its goal is to get a fair agreement through compromising.
Focus: Focus is usually narrow and process is usually evaluative.
Usually the process involves a series of separate "caucus" meetings in which the mediator tears down each
side's assessment of the merits of their case. Facilitative tactics may also be used to nudge the disputants
into settlement.
This process resembles lawyer-assisted negotiation.
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Note: What is Caucus
Caucus is a meeting between a mediator and one disputant (with or without the disputant's representatives),
out the earshot of the other disputant and his or her representatives. A caucus is different from a joint
session, which all the disputants involve in mediation, and/or their representatives, attend.
Advantages:
1. Bargaining based mediation is particularly good for cases in which there are highly divergent perceptions
of fact or law.
2. Good for situations with highly complex legal issues
3. Saves time
4. Feels familiar to legal advocates
Disadvantages:
1. Promotes positional bargaining ­ may produce impasse and conflict escalation.
2. If conflict is already escalated, it's unlikely to work.
3. Outcomes are usually restricted to money and often display a lack of creativity.
4. Psychological ownership may be low.
5. Only mediators with subject-matter expertise will be able to muster the authoritative presence needed to
do the work.
Therapeutic Mediation
Therapeutic mediation is generally designed to improve the relationship of the disputants, so that they are
able to settle their conflicts. However, it is sometimes unclear what the goal of therapeutic mediation is.
This is a problem. Mediation has many similarities to therapy, and, because there are so many varieties of
mediation, it can be difficult to define the difference. The problem with therapeutic mediation occurs when
the neutral is unclear about what the goals are.
Nonetheless, therapeutic mediation, if its goals are clearly defined, can be both necessary and very helpful in
high-conflict situation, particularly those involving a disputant who has a mental illness or an emotional or
personality disorder requiring high levels of professional support before he or she can negotiate effectively.
Goals, Advantages and Disadvantages of Therapeutic Mediation
Goals:
1. It is to improve relationship functioning so that conflicts can be resolved.
2. Focus is extremely broad and facilitative.
3. Much like counseling ­ the mediator explores reasons for relationship breakdown and also helps parties
explore solutions.
4. This process resembles lawyer-assisted negotiation.
Advantages:
1. Can improve overall functioning so disputants with a continuing relationship can resolve future conflicts
2. Useful in escalated conflict between former intimate partners
3. Can assist disputants whose mental-health issues are impeding
Disadvantage:
Mediators need to make their roles very clear; otherwise, conflicts of interest and role confusion may result.
Pure Mediation
Pure mediation is a facilitative process whose goal is to promote collaborative, integrative, principled
bargaining. (It is very important to note that the goal of pure mediation is not to reach agreement but, rather,
to promote the sorts of negotiation behaviors that will lead to reaching agreement.)
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Pure mediation is often seen in community and divorce mediation, and it is being found in other contexts in
increasing numbers. This form of mediation is also becoming more accepted by the legal profession. It is
highly facilitative, and the breadth of issues dealt with is as broad or narrow as the disputants wish it to be.
There are many advantages to pure mediation. They mirror many of the advantages we have already noted
for mediation in general. Since pure mediation facilitates principled bargaining, the agreements reached tend
to be highly creative, win-win outcomes that optimized the use of resources. Pure mediation may have long-
term benefits for disputants who must continue a relationship.
Pure Mediation
Goal: It is to facilitate Collaborating/Integrating negotiation between the disputants.
Focus: as narrow or broad as the disputants decide to make it. It is highly facilitative and non-coercive.
Mediators work to restore or maintain a cooperation cycle and to deescalate the conflict.
Advantages:
1. Best at retaining the advantages of cooperative negotiation ­ optimal outcomes, preserved relationships,
psychological ownership.
2. Even if agreement isn't reached, substantive improvements in relationship and narrowing of conflict
often result, making other dispute resolution easier and faster.
3. Disputants often have issues clarified, which empowers them if other dispute resolution processes are
needed.
Disadvantages:
1. More time-consuming than evaluative processes (short term).
2. May not be appropriate for marginally functioning disputants.
3. Marketing problems ­ disputants and their attorneys often prefer evaluative approaches.
If mediator is incompetent this is a poor option.
More Advantages and Disadvantages of Pure Mediation
There are long-term benefits even if agreement is not reached:
Pure mediation narrows the issues, so that, if another dispute resolution process is required, it's likely to be
easier and faster.
There is a good chance that the disputants will be more cooperative, so other alternatives will not be as
expensive, time-consuming, or traumatic.
Pure mediation can teach principled bargaining to the disputants, so that they can use it elsewhere in their
lives. There are fewer disadvantages to pure mediation than we have seen for other varieties of mediation,
but it does raise a few problems. First, if time is an important consideration and if only a narrow, short-term
perspective is important, bargaining-based mediation may be a better choice.
Transformative Mediation
Transformative mediation resembles pure mediation, except that its goals are even more completely
removed from "getting an agreement." There are two primary transformative goals:
Empowerment: the improvement of the personal power of each disputant
Recognition: the ability of each disputant to take the perspective of the other disputant and to
communicate this sense of understanding to the other disputant.
Transformative mediation's advantages are similar to those of pure mediation. Agreements reached in
transformative mediation are psychologically owned in full by the disputants, who are very likely to abide by
them.
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Goals, Advantages and Disadvantages of Transformative Mediation
Goals:
1. It is to promote empowerment and recognition of each disputant.
2. Its focus is very broad and facilitative.
3. Process is very fluid and involves having the disputants tell about the situation.
4. Mediator takes advantage of any opportunity to confer power and recognition on each disputant.
Advantages:
As with pure mediation; may be even better than pure mediation at conferring psychological ownership.
Research suggests that it may be effective in "transforming" disputes constructively, and there are claims
that its widespread use would transform and improve society at large.
Disadvantages:
Disputants may not want this form of mediation (since it does not claim to have settlement as a goal) ­
marketing dilemma.
Research is not clear that it has the advantages it claims.
Forms of mediation
Form
Typical Adherents
Major Goals
Untrained
mediators, Getting an agreement cheaply and
Triage mediation
underfunded
court quickly
systems
Bargaining-based
Lawyer-mediators,
Getting a "fair: settlement, getting a
mediation
retired judges
compromise
Therapeutic
Mental-health
Improving the relationship between the
disputants, so they can work better
mediation
professionals
together and avoid present and future
conflict
Some private mediators, Facilitating collaboration between the
Pure mediation
particularly family law
disputants to get a win-win outcome
Transformative
Expanding  use  among
Extremely broad, facilitative; promote
private mediators, used
empowerment of each disputant and
mediation
by U.S. Postal Service
recognition
of
each
disputant's
perspective and situation by the other;
REGRESS program
attaining  settlement  considered  a
secondary goal
Legal Assistants and Paralegals
Paralegals are becoming increasingly important members of the legal team, and many of the activities for
lawyers in the mediation process are appropriate paralegal functions.
Role:
1. His/her role is to do anything the lawyer could have done except negotiate on the lawyer's behalf and
give legal advice. Particularly important role is in case and client preparation, interests and BATNA analysis.
2. Keep roster of mediators and make recommendations.
3. Paralegals attend mediation sessions; assist and keep records.
4. They act as mediators (some disputes and jurisdictions).
Summary
We have learnt five different forms of mediation. Depending upon the nature of disputants and the nature
of conflict, you can pick and choose one or more forms of mediation to resolve the conflict between
participants.
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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