MEDIATION II:Important distinguishing factors, More Advantages and Disadvantages of Pure Mediation

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Conflict Management HRM624

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

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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