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An in-depth analysis of mediation, a facilitated negotiation process where a third-party (tp) assists parties in resolving disputes. The definition, benefits, and stages of mediation, as well as the mediator's role and sources of authority. It also discusses various models of mediation, such as transformative, commercial, and real-life models. The document highlights the importance of communication, trust, and empowerment in the mediation process.
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Nature of mediation Definition – facilitated negotiation where a TP is invited into the negotiation to assist the parties. Consensual, TP neutral, impartial and non-aligned with no decision-making authority, party control substance, mediator controls process. Mediator manages the negotiation process, creates appropriate environment for resolution, encourages communication and info exchange, assists with discovering interests, searching for options and assessing possibilities for agreement. Why mediate? To overcome barriers in negotiation such as reactive devaluation, emotions, communication, impasse, adds structure to negotiation process, helps enhance/maintain relationships, permits creative solutions, private, confidential to parties. Overview of literature Mediation seen as way to get fast, efficient justice and deals with problem of overburdened courts. Way of increasing access to justice. Genn & Roberts – mediation is a vehicle for settlement. Kolb – parties mediate in order to empower themselves. Empowerment is defined as belief in free will. Bush & Folger – transformative mediation. Mediation offers empowerment and recognition. Enables parties to understand, consider and acknowledge other side’s views + perspectives. Community model mediation works on premise of direct engagement with the parties. Parties listen to each other and repeat what the other has said. As soon as recognition occurs, movement towards agreement is quick. Transformative med was criticised as it was presenting med as spiritual/religious and little data supported its proposition. De Girolamo – mediator can use some tools for empowerment and recognition in order to assist parties to get to settlement. Roberts & Palmer, Fuller – mediation enhances community by promoting harmony. Sources of mediator authority Institutionalisation e.g. rules of court, contractual obligation, mediator reputation/expertise, mediator’s prior relationships with parties. Mediator rapport with parties – mediator is invited into dispute by parties. Relationship is built with parties. Mediators build rapport through casual conversation which can change the way parties look at the mediator. Schelling – mediator’s authority similar to a driver stepping into traffic to control it and other drivers allow this. Roberts & Palmer – mediator is a ‘superior’, ‘being there’, ‘the outsider’ or a professional.
Process of mediation Flexible phases which the mediation proceeds. Theoretical model – Roberts & Palmer 8 stages of mediation using negotiation model Real life model – De Girolamo 6-stage negotiation model through which mediation progresses with the TP. Commercial model – CEDR own stages of mediation. Models sees mediator as a facilitator and not evaluator. Extent of mediator involvement varies. Structure of the mediation process Joint meetings – mediator starts with this, talks to both parties about his role and what to expect. Parties are offered a chance to narrate what the dispute is all about. Joint session may continue if mediator has more questions. Private meetings (caucusing) – private meetings between mediator and each side. Mediator is not allowed to disclose info discussed here without party consent. Mediators should spend same amount of time with both parties to offset any trust issues. Other way to offset distrust is through rapport/mediator authority/reputation. Series of meetings Co-mediations – happen in multiparty disputes Timing of sessions Opening statement is important in the beginning as it makes parties face each other and delve into problem solving. They provide context for dispute. Critics argue that we should go straight into private meetings. Mediation is a process within the control of the mediator to shape. Quotes Simon Roberts & Michael Palmer, Dispute Processes: ADR and the Primary Forms of Dispute Resolution (2005) Mediator is a facilitator, helps parties to communicate. Mediator is also an expert consultant and advises parties. Transformative mediation – conflict is viewed as opportunity for moral growth + transformation Gulliver – status of mediator examined on whether he’s disinterested or acknowledged as an interested party. The mediator as a go-between can change content of messages, emphasis, strength + add own interpretation. Passive mediators encourage more communication + interaction between parties. Active mediator keeps order + tends to direct procedure. Mediators connected to both parties have divided loyalties and obligations Simmel – mediator is a non-aligned facilitator. Mediator is (i) outside of interests (ii) acts as an intermediary. TP intermediary has some interest, stake in getting things back to normal Gulliver – mediators lean to one side/have significant interest in resolution of dispute Princen – neutral mediator: no interest, principal mediator: indirect interest.