1. What are the differences between mediation and negotiation? The major difference between negotiation and mediation is that the latter uses the services of a third party, while negotiation can be done by the two parties involved in the matter. For instance, if there is a dispute on breach of a contract between the two parties, they may settle the dispute among them via negotiation. This can be done with or without the aid of corporate lawyers. But if both the parties are not happy with negotiation, a mediator is called for, and it is understood that the mediator has the final say regarding the matter in question, if mediation doesn’t help either, then the matter might be heard in the court.
2. Does mandatory mediation make sense? Why or why not? Mandatory mediation does make sense. It is not just a subjective judgement, mandatory mediation is conducted in good faith and hence gives the parties to the matter, a chance of resolving the issue in out of court settlement. It also gives a mandatory ‘right’ to a grieved employee to get his right, and as a compulsion, must pass through several steps.
Mediation precedes arbitration, which is a more ‘courtly’ form of out of court settlement. In my opinion, such an opportunity makes a lot of sense in a contract. 3. Why is it important for the mediator to be neutral? It is only common sense to uphold the premise that the mediator be neutral. If the mediator holds any bias toward either party, then his services are useless; it kills the case of mediation. Justice will not be done in the manner it is supposed in case of a biased mediator. 4.
Would you like the opportunity to have a dispute resolved by a mediator rather than a judge? Why or why not? I would always favour out of court settlements like negotiations or mediation. Dragging a matter to the court is the last thing that I would consider. Taking a matter to the court before the judge means that the matter won’t be resolved soon, and there will be really high lawyer charges, regardless of who wins or loses.
5. What are the five key elements of mediation set forth in Schellenberg? Mediation is assisted negotiation: Both the parties have better opportunity to put forth their arguments. The mediator is a neutral third party: which is mandatory, otherwise the parties won’t agree on the mediator, and consequently the matter will go to court. Mediation is voluntary: This also serves the parties who have been wronged in the true sense, who have been stripped of any right(s), there is no obligation to seek mediation. Disputants retain responsibility: Mediation doesn’t absolve anyone of their crime (in case there is one). Mediation is private and confidential: This serves as a curtain in case the parties involved want to keep things out of public access.
No one likes to be defamed. 6. What is the most important point that you learned from the discussion in Schellenberg regarding mediation? What made you select this point? The most important point in Schellenberg discussion is how mediation stands out from other forms of conflict resolution. As compared to negotiation, mediation has a more structured format and there are more chances both the parties coming to common terms.
For instance, in mediation, the parties take longer turns during their speech and mostly the speech is directed at the mediator, there is very little conversations (arguments) between the parties involved. “Norms don’t favour sharp interruptions” (Schellenberg 27). There are many reasons why there is such a huge rise in the growth of mediation; Outcomes: Out of court settlements occur in nearly half of the cases that go for mediation, proving how effective and efficient mediation is. Client Satisfaction: Clients are usually more satisfied through mediation than other forms of adversary measures. Client Costs: It is only understandable why mediation is such a popular way to resolve a conflict.
Costs associated with other forms of conflict resolution are usually much higher than mediation. Compliance: Usually the parties to the matter (contract/marriage) are more compliant with mediation procedures (at least in the short term) than other forms of settlements. Psychological effects: There is usually less grievance in mediation, be it regarding corporate matters or marital affairs like divorce.
In the courts, there is a winner and a loser, and no one likes to be the loser. That is why mediation has more positive psychological effects. Source Schellenberg, James A. Conflict Resolution: Theory, Research, and Practice. Albany, NY: State University of New York, 1996. Print.