How The Mediator Influences the Parties to Achieve Consensus - Coursework Example

Title: How The Mediator Influences The Parties To Achieve Consensus Name: xxxxxxxxxx Course: xxxxxxxxxx Tutor: xxxxxxxxxxx Date: 27/12/2010 Introduction Mediation is the key factor used in almost all conflicts and its main objective is to bring the resolution and settling of the disputes. It has been in use ever since the days before Christ for example in the Old Testament of the Bible where it brought resolutions to many disputes. It has been used in the national level where clans go in war because of some misunderstandings to the international level where we see nations or countries disagreeing on certain issues. Mediation is also employed in literature for example in the Sophocles’ Ajax (500yrs B.C.) as well as the Homer’s Iliad 750 yrs before Christ (Bercovitch & Rubin, 3). Other area where mediation is employed is in industrial relations, family law implementation, in civil and criminal litigations as well as in the international relations. In this context we are going to look at the role of the mediator and his importance to this whole process, the parties involved in the conflict as well as the different foams of mediations that can be employed to come to resolution. Lastly the consensus of the conflict where we shall talk about the different foam of consensus applied in mediation. The mediator is a very significant person in any conflict and the role he or she plays is what matters greatly in such a case (Alexander, p9). There are many things that the mediator should keep in mind and follow without fail. To begin with, the mediator should be neutral when assessing the conflict and he should never have any vested outcome interest between the parties in the dispute because this may badly affect the outcome of the mediation process. The ground rules therefore determine how the parties will behave in the whole process. Another important thing that the mediator should note is that he or she should be able to understand the conflict well and therefore be able to explain or break it down to the parties that they may also understand it well before they start resolving it. It is very easy to find the solution to any problem as far as everybody understands where the problem was and the way forward. Eventually the mediator after explaining the details of the conflict to the parties is now able to leave the parties to decide on the agreement which they wish and in so doing everything shall have been settled well (Berger, pg12). Another thing is that the mediator should be a well trained and equipped professional person who should as well be very confidential to protect the image of the whole process. He or she should not reveal or expose any secrets laid down in the process to other unconcerned outsiders whose work is to spread gossip about everything as well as exaggerating the matter. Thirdly, the mediator should be well equipped with the laws that govern the two parties. Actually, other than the laws or the rules and regulations that they set to lead the mediation process, there are also the laws of be it a community, province, nation or even international matters that govern the body and should be well interpreted and implemented in the whole process (Hardy, pg 39). Moreover, there are certain problems which occur during the mediation process. Some of these include the delay or taking very long period before coming to the resolution, reaching to the expenses involved in the whole process as well as the rigidity of the process. Therefore the mediator should have a way to minimize such problems and this can only happen when the mediator is a professional in that field. For example, taking a very long period to come to the solution is mostly solved well when the mediator is capable of making the two parties to understand where the problem is and hence coming up with the resolution quickly (Fells, p34). The mediator should be in a position to let the two parties have equal participatory chances so that all of them can be able to express themselves well as they wish. This is a very important point that should be taken into consideration by the mediator because it is what brings out the differences between the mediation process and the use of courts and judges. The other thing that we have to look at in this mediation process is the parties involved (Brooker, p56). First, the two parties need to decide which is the way out of the problem, should they go to court or just involve a third party to find the solution. Therefore it is the parties that normally decide to take a mediator to come and help them find a resolution for their problem and so they need not to blame the mediator for the outcome of the process although nowadays most of the mediation process usually brings peace. Secondly, the two parties should corporate and give the mediator a humble time to go through the matter. There are some parties that are normally very stubborn in the whole process of mediation and this should not be happening this way since the two comes together and decides to use a mediator. Now let us talk about the consensus of mediation. These are simply the rules or set of principles that are set by the conduct code and are committed by the mediator and through out the whole process, they follow them satisfying their responsibilities. Note that these principles imply to all the mediators be it at civil matters or commercial matters. The code in this case is the agreement made by the two parties to appoint the third party who is the mediator. The codes’ adherence has no prejudice to the regulatory rules of individual professions or the national legislation (Gatan, p48). Many organizations that have the mediation services have the desire to develop more codes with details and that can suit well the mediation services they offer which also regards areas like family mediation. There are a number of these consensus mostly adapted by the Europeans and these include the competence and appointment of mediators, independence and impartiality, the mediation agreement, process, settlement and fees and then lastly confidentiality. Competence and appointment of mediators Like in any field, the mediation field also has got competence and in this case based on Mediators skills, proper training, experience, good continuous updating of their education as well as accreditation skills. Appointment of the mediator on the other hand is done by the parties which organize the date for the mediation to take place then they confirm it to the mediator. Then it is upon the mediator to satisfy the background and competence to carry out the mediation process before accepting the appointment set (Gatan &Kleiner, p24). This normally happens when the parties requests the mediator to tell them about him/herself and by so doing, they be advertising themselves and becoming famous. Independence and impartiality The mediator should be very independent and neutral and the code states that he or she should not act or start acting when he or she has an interest with the conflict because this may affect the outcome of the conflict greatly. Therefore it is advisable that the mediator disclose this to the parties immediately the appointment is made. This normally happen when the mediator is maybe a relative to one of the parties or may be a business partner to one of them as well or any other relationship existing either direct or indirect (Brooker, p19. Impartiality simply means the full neutrality and commitment that is supposed to be shown by the mediator to the mediation process. He/ she should serve all the parties equally and with much respect. The mediation agreement, process, settlement and fees agreement is that process where the mediator satisfies that the parties knows all that entails the process, the role of the mediator as well as their own role in that conflict. He or she is also supposed to ensure that the parties understands the rules and conditions involved in the process and these is then put to writing. In order to bring up fairness in the process, the mediator is to ensure that each party has an adequate chance or opportunity to express themselves. He/ she is also able to terminate the mediation if he or she feels that the settlement that is going to be reached may be illegal or if he or she feels that the mediation is unlikely to reach to settlement of the conflict (Latifi, p 53) The parties should also understand the terms of agreement when the mediation process comes to an end. He or she may also help them make the agreement enforceable. Confidentiality The mediator is to keep all the information that he or she acquires from the mediation confidential whether the mediation has taken place or is to take place (Goldberg, p 39). He or she is also not supposed to disclose anything that he or she is informed by one party separately to the other party or any other person unless compelled by the law. Conclusion Mediation is the key to peace in the world because it is employed in almost all conflicts from family level to international level. Mediators are the professional individuals who carry out the process of mediation. They can be very vocal in the whole process and be great influencers of the outcome or they may just participate a little by assisting the two parties come to resolution (Moye, p59). The parties have also a role to play whereby they are the ones who sets the appointment with the mediator they feel can really help them out as well as participating fully to the mediation process in order to come up with resolution. Bibliography Alexander. (2008),” The Mediation Metamodel: Understanding Practice”, Conflict Resolution Quarterly. Vol.26(1), pp.97-123.     Berger, J.M.,(2008-2009),”Respect in Mediation: A counter to disrespect in the workplace”, Dispute Resolution Journal, Vol.63,pp.18-26  Brooker,P.,(2007), “An Investment of Evaluative and Facilitative Approaches To Construction Mediation”, Structural Survey, Vol. 25(2/4), pp. 220-238.  Da Silveira, M.A.,(2007), “Impartiality v. Substantive Neutrality: Is the mediator authorized to provide legal advice?”, Dispute Resolution Journal, Vol.62(2),pp.26-33.  Fells, R (2010) Effective Negotiations: from research to results: Cambridge, Cambridge University Press. Gabel, S.,(2003), “Mediation and Psychotherapy: Two sides of the Same Coins?”, Negotiation Journal, Vol.19(4), pp.315-328.  Gatan, R.,& Kleiner,B.H.,(1999),”How to conduct mediation effectively”, Equal Opportunities International, Vol.18(5/6),pp.69-73.  Goldberg, S.,& Shaw, M.L.,(2009),’Is the mediator’s Primary goal to settle the dispute?”, Dispute Resolution Magazine, Vol.15(2),pp.16-19.  Hardy, D.,(2008),”Mediation and Genre”, Negotiation Journal, Vol.24(3), pp.247-268.  Latifi, L, (2009),”Mediate a dispute: The right way to deal with drama”, Psychology Today, January,p.26.  Medison, J.R.,(2008),”Everything you need to know about authority to settle a mediation”, Dispute Resolution Journal, Vol.63(2),pp.20-24.  Moye, N.A., & Langfred, C.W.,(2004), “Information sharing and group conflict: Going beyond decision making to understand the effects of information sharing on group performance”, The International Journal of Conflict Management, Vol.15(4), pp.381-410.      Read More