How Does the Style of the Mediator Influence the Parties to Achieve Consensus - Literature review Example

STUDENT NAME: STUDENT NUMBER: INSTRUCTOR NAME: UNIT NAME: UNIT NUMBER: TOPIC: HOW DOES THE STYLE OF THE MEDIATOR INFLUENCE THE PARTIES TO ACHIEVE CONSENSUS? DATE: How does the style of the mediator influence the parties to achieve consensus? Mediators are faced with a wide variety of dispute resolution scenarios and each dispute has specific challenges requiring the mediator to be correctly positioned for the resolution of each case at hand (Alexander, 2008). Of the plethora of available mediation styles I shall argue that the Evaluative style is the most effective, time saving, professional and valuable approach, despite the relative merits of the alternative styles. According to Mosten (1999, p. 429-447) a mediator is a neutral third party whose role is to facilitate amicable resolution of a conflict in a fair, dignified way that preserves relationships while specifying real issues. Foster (2003) points out that when conflict arises, people tend to react to it in one of five ways, avoidance, collaboration, accommodating, compromising or competing. Lois Warner et al (2004) explain that avoiders tend to sidestep dealing with issues or deny the conflict issue exists; collaborators tend to want to the underlying causal factors of a conflict and expect others to do the same; Accommodators tend to agree to issues that their instincts are strongly rejecting; Compromisers always wish for a middle ground solution that leaves all parties reasonably satisfied; and the control and compete personality always wants to win at any cost. There is no cut and dried personality trait and most people respond in a combination of these responses. A mediator must therefore understand the different personality types in any conflict situation if he is to get to the very bottom of the cause of conflict and bring resolution. Mediators also affect the dynamic of the conflict in four ways (Mayer, 2000). One way is by bringing a different structure to the conflict since disputants often present their cases differently. A second way is that the mediator brings commitment, vision and humanity to the interaction through his optimism for a successful outcome. A third way is through their negotiation skills, such as reframing statements, analysis of issues and available options, thus reassuring the parties involved. The fourth effect of mediators is the set of values and ethics they introduce to the disputants in order to engender trust and respect between the disputants. The four most commonly used styles of mediation are the facilitative, evaluative, transformative and narrative styles. Linden (2002) also offers what he calls an eclectic approach he terms the "tool-kit" approach, which allows the mediator to use any style or combination of styles necessary during any given mediation. The three styles mostly employed are the facilitative style, the evaluative style (Wall, et al. 2001, p. 370-391) and the transformative style (Folger and Bush, 1994). The facilitative style is very structured and methodical. It involves the use of open-ended questions, encouraging the disputants to talk so as to emphasize their strong and weak points, while paying attention to the real ultimate causes of the conflict rather than the surface proximal causes of the dispute (Blancato and Gibson, 2008). The evaluative style on the other hand, involves giving an advisory opinion about the potential outcome of the case. Evaluative mediators pay particular attention to the legal rights of the disputants in order to correctly frame the needs and interests of the disputants in the fairest way acceptable at law (Brooker, 2007; Alexander, 2008; Blancato and Gibson, 2008). Evaluative mediators practice “shuttle diplomacy”, meeting separately with disputants and their legal counsel (Zumeta, 2000). It is expected of a skillful evaluative mediator not to be too directive and avoid imposing his own opinion on the disputants, but rather to be illustrative in helping the disputants come to real terms with their positions so as to help them decide their best option with regard to the facts (Linden, 2000). Transformative mediation is based on the values of "empowerment" of each of the parties as much as possible, and "recognition" by each of the parties of the other parties' needs, interests, values and points of view. Transformative mediation aims at transforming the relationships among the disputants during the mediation. Transformative mediators meet with all the disputants together to allow them to give recognition to each other (Folger and Bush, 1994). Linden (2002) points out that while many people consider transformative mediation to be highly effective in the resolution of the conflict, others find it more like “mediator magic” where an agreement is reached, but then the next day, it is “business as usual” because it relies too much on body language, attitudes and interaction between disputants. The narrative style is designed to create an alternative story that can replace the dispute, especially for disputants who are likely to continue to coexist after the dispute is resolved. The goal is to create a different perspective of the relationship that can be substituted for the conflict and result in an acceptable agreement, while enhancing communication post-mediation (Moye and Langfrid, 2004; Berger, 2009). (Linden (2002) disagrees with the view of “purist mediators” who advocate the exclusive use of one style or another and tend to advocate that their preferred style is the acceptable way to mediate a conflict It is argued by Linden that a mixture of approaches is better if it suits the dynamics and complexities of a conflict resolution situation. While there is merit in all these styles, it is my conviction that while the facilitative style is well structured and gives power to the negotiating parties, this style not only helps entrench the original adversarial positions of the negotiating parties, but it also draws out the negotiation process due to bickering, unpreparedness to compromise, misapprehension of the legal implications, one-upmanship and inflated egos. On the other hand, the evaluative approach in my opinion, is more authoritative and thus quickly disabuses the negotiating parties of any legal misapprehensions they may have, and sets them straight about the weakness of their arguments (Da Silveira, 2007; Goldberg and Shaw, 2009). In this respect the negotiation is brief and to the point, and no time is wasted listening to adversarial bickering that may not hold water under close scrutiny of the law, and the parties get what they realize to be their best settlement rather than what they considered to be their just desserts. A mediator is faced with two main scenarios, cooperation or competition between the negotiating parties. The cooperative scenario usually gets the quicker resolution and best results for all parties. This is because the openness and sincerity of the negotiating parties affirms cooperation as an affirmative strategy (Carnevale, 1986). This strategy requires that during a negotiation, a party must match the opponent's move either competitively or cooperatively: beginning cooperatively; retaliating if the other side is competitive; forgiving if the other side becomes cooperative; being clear and consistent in the approach; while all the time remaining flexible. This approach to a cooperative negotiation ensures a balanced negotiation and does not allow either party to have a disproportionately upper hand (Lewicki et al, 1986). The evaluative style should be used while encouraging a cooperative approach. In a competitive negotiation the evaluative style has the immediate advantage of predicting an outcome that contradicts and discredits what the negotiating parties had hoped to be the outcome of the case. While this evaluative style often causes one side or the other to become anchored in the mediator's evaluation and unwilling to negotiate, I believe it is nonetheless rooted in an objective weighing of the merits of the negotiating parties' positions, and prunes off any spurious arguments and grand-standing from the proceedings, thus limiting discussion and compromise to within the ambit of reasonable expectations during the negotiation process. Evaluative mediators emphasize the legal rights of the parties based on legal concepts of fairness. It is therefore my strong opinion that Evaluative style is the most effective, time saving, professional and valuable approach, despite the relative merits of the alternative styles. is more authoritative and thus quickly disabuses the negotiating parties of any legal misapprehensions they may have, and sets them straight about the weakness of their arguments. REFERENCES Billikopf- Encina, Gregorio. 2002. Narrative Mediation: A New Approach to Conflict Resolution. International Journal of Conflict Management, Vol (13): 1. pp 100- 104. Berger, J M. 2009. Respect in mediation: A counter to disrespect in the workplace. Dispute Resolution Journal, Vol 63 (4) pp. 18-26 Blancato, W A., & Gibson, Jr, C A. 2008. Controlling Your Own Destiny: You can with mediation. Dispute Resolution Journal, Vol 63 (3), pp.14-22. Brooker, P. 2007. An Investigation of Evaluative and Facilitative Approaches To Construction Mediation. Structural Survey, Vol 25(4), pp.220-238. Bush, Robert, Baruch, A and Folger, Joseph P. 1994. The Promise of Mediation. California: Jossey-Bass Carnevale, P.J.D. 1986. Mediating Disputes and Decisions in Organizations. Research on Negotiation in Organizations Vol 1, pp. 251-269. Da Silveira, M A. 2007. Impartiality v Substantive Neutrality: Is the mediator authorized to provide legal advice? Dispute Resolution Journal, Vol 62 (2), pp. 22 Etcheson, Steven C. 1999. Transformative Mediation: A New Current in the Mainstream. Policy Studies Journal, Vol 27 (2), pp 393-396 Foster, Katina. 2003. A Study in Mediation Styles: A Comparative Analysis of Evaluative and Transformative Styles. Retrieved on December 18th, 2010 from http://www.mediate.com/articles/fosterk1.cfm Lewicki, R. et.al. (eds). 1986. Research on negotiation in organizations. London: JAI Press. Linden, Jon. 2000. Mediation Styles: The Purists vs. the ‘Toolkit’. Retrieved on December 18th, 2010 from www.mediate.com/articles/linden4.cfm Lois Warner et al. 2004. Conflict Resolution Styles. Retrieved on December 18th, 2010 from http://www.mediationworksnorth.org/a/j/tips/7-avoidance-conflict-resolution-style 2004 Mayer, Bernard. 2000. The Dynamic of Conflict Resolution. California: Josey-Bass Publishers Mosten, Forrest S. 1999. Mediation and the Process of Family Law Reform. Family and Conciliation Courts Review, Vol 37 (4), pp. 429-447. Russell, Rick. 2002. Conflict Analysis in Relation to Mediator Strategy and Type. Retrieved on December 18th, 2010 from http://www.mediate.com/articles/russelr.cfm Wall, James A., John B. Stark and Rhetta L. Standifer. 2001. Mediation: A Current Review and Theory Development. The Journal of Conflict Resolution. Vol 45 (3). pp. 370-391. Zumeta, Z. 2000. Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation. Retrieved on December 19th, 2010 from http://www.mediate.com/articles/zumeta.cfm Read More