Mediation and Conflict Management - Coursework Example

Mediation & Conflict Management Assignment Essay                   Student Name:   Student Number:   Lecturer Name:  Due Date: Number of Words:  3820     Contents Contents 2 Introduction 3 Conflict situation 4 Theoretical Rationale 4 Mediation Strategy 4 Intake and screening 5 Mediation Processes Used 5 Contact with the parties 6 Preliminary meeting 7 Settling the agreement to mediate 7 The stages of the Mediation Meeting used 8 Identification of areas of personal strengths and weaknesses 9 Referenced personal analysis and discussion of the mediation skills and processes used and your current practice orientation 11 Advantages of this mediation 12 Conclusion 13 Reference 15 Apendix 16 Table:1 16 Transcript 16 Introduction The American Arbitration Association (AAA) refers to mediation as a meeting amongst disputants. This meeting also involves all sides representative and a mediator who discuss dispute settlement. The core role of the mediator is to assist disputants in exploring their issues and requirement and weigh settlement options. Wall, John & Rhetta (2001), states that a mediator may put forward suggestions and point out some of the issues that may have been overlooked by the disputants. They however, clarify that the disputants hold the resolution after the mediation. According to Billikopf-Encina, G. (2002), a mediation conference requires very little preparation time and can be schedule very prompt. Nonetheless, there are situations where extensive preliminary contacts followed by preparation; this is commonly referred to as intake procedure. Such a conference commences with a brief joint discussion of the case, this is usually followed by mediator working both collectively and discretely, if appropriate, to find a solution. Majority of cases are resolved in a short span of time depending on the mediation work (Billikopf-Encina, 2002). There is substantial difference in the manner which preparatory work is undertaken before a mediation meeting is held. In the policy guidelines many mediation services regulated the nature and scope of preparation work and emphasis on the need of screening possible cases for suitability (Billikopf-Encina, 2002). In numerous private mediations depends on the intake procedure, availability of resources like time, the nature of the conflict and the style of mediating used by the mediator. According to Billikopf-Encina (2002), conventional wisdom demonstrates that the more preparation undertaken, the more likely it is for a quick resolution and a settlement. Ample preparation lays groundwork for successful mediation. The preparation can even result to a settlement before the mediation is initiated. Conflict situation The conflict within the case is between the manager of MACE constructions and Jack who lives in an old colonial house and had contracted Mace on improvement of the house so that he could house the father. The construction manager refuses to continue with the construction activity until Jack pays an extra $5000 for some extra drainage work that has been detailed to be essential to raise the house to modern standards. On the other hand, jack refuses to pay any extra money until m the whole work is complete. He is worried that if he put some more cash to the project the construction company might refuse to finish the work in time. He needs the house finished quickly and within the budget. The problem is that several weeks after the work commenced it became impossible to continue due to heavy down pour and work was temporarily on hold and the company started working on a different project. The construction manager could not understand why Jack was so angry and the construction manager could not understand the cause of the anger. Theoretical Rationale Mediation Strategy The manner in which a mediator instigates the course of mediation is imperative in securing disputants commitment to mediation. In reference to Wall, John & Rhetta (2001), the initiation on a mediation process offers a mediator an opportunity to build up trust and acceptability which is important for further negotiations. In the mediation audio play provided, the mediator starts with introducing a joint approach. It is also referred to as contractual mediation. In contractual mediation the disputants jointly contract with an outsider whose main aim is assist them in making contractual decision. Intake and screening In some cases where mediation is not compulsory the disputants engage in a formal procedure used to evaluate appropriateness of the disagreement for mediation. The intake process allows consent to assessment of factors like; availability of resources, equality of power resources, commitment and motivation among other relevant factors that may indicate the relevance for mediation a (Billikopf-Encina, 2002). The key role intake procedure is to educate and reassure the disputants’ about the nature of interventional process. The intake process also gives an allowance for the mediator to examine the kind of mediation necessary and various views as to what extent the mediator should be involved. Personal Analysis\ The initial stages of mediation were through discovery and disclosure of relevant information. This information was provided by the parties involved. Full disclosure could be requisite by the Agreement to Mediate; this may assist the mediation service to identify data that is required and disclosed hence encouraging supreme of exchange. Mediation Processes Used The mediation takes place during the course in the course of legal proceedings. Disputants exchange their reports and every document associated with litigation. Wall, John & Rhetta (2001), further states that the mediator receives reports and copies from disputants and may even information on private basis. The information helps the mediator to diagnose the conflict. In the mediation audio the mediator is also in a position to assess the suitability of the mediation and to develop a specific strategy for successive phases of the mediation progression. Nonetheless, majority of the mediators do not themselves need access to the documentation related to mediation process. Gathering and exchanging informational assist the parties in narrowing the areas of their disputes and clarifying them on each other case (Billikopf-Encina, 2002). Contact with the parties Where; resources, relevant policies and time, mediator can hold personal contact with the disputants before the mediation. Such practices occur in private mediations where some professional mediators attempt to interview each of the disputant in person way before mediation meeting kicks off (Billikopf-Encina, 2002). There are several purposes of such meeting; • To make sure that information and data can be liberally provided in a secret setting in an atmosphere that is not confrontational. • The parties get enlightened on mediation generally and the procedures they expect upon commencement on the mediation process. • The mediator is able to create a close working relationship with the parties through development of confidence and acceptability. • In case the contact takes place in similar venue with mediation, the parties are familiarized wit the environment and available amenities. Preliminary meeting The meetings are usually held to consolidate all preparatory activities. The meeting is convened by the mediator and its main purpose is to evaluate the stricture of the disagreement. At the meeting the mediator specifies the issues to be dealt with swap over of information and organize for the disclosure (Wall, John & Rhetta, 2001). The mediator also identifies the participants in the mediation, settles the Agreement to Mediate and lastly, makes executive arrangements. In many instances, only legal advisers attend these meetings, however, the parties and other participants are not restricted to attending these meetings. Settling the agreement to mediate Etcheson (1999) states that in case of existing cost agreement and an already drawn Agreement to Mediate, such are settled before the mediation meeting and in most cases in the preliminary meeting. The Agreement to Mediate entails each person’s power and responsibilities involvement, procedural matters, organizational matters, payment of fees and confidentiality requirements. A standard agreement states that the mediation fees should be equally shared by all the parties; this often acts as a reassurance of mediator’s impartiality, however, there cases where one party is burdened to cover the full amount. The agreement to mediate creates certainty on matters relating to law and procedure. There are several organizational matters that ought to be featured in consultation with the parties before starting the mediation process. The preparatory matters include; the venue of mediation and time, access to available amenities, the seating arrangements and the duration of the sessions of mediations (Etcheson, 1999). Preparatory matters are held for convenience purposes. There are disadvantages in it formal environment and legalistic aura of the process. Care and consideration should be given to feasibility of the setting due to inherent flexibility of mediation. The stages of the Mediation Meeting used Etcheson (1999) have outlined several stages that are identified by commentators for a standard mediation process. The different in stages depend on methods of categorization and inclusion of preparatory stage in the stages. The initial stage is controversy or dispute between disputants (the contractor and job giver). It is not an obligation to of the mediator make decisions rather it is the disputant who make the ruling. The intent of mediation is to achieve a positive result, which result from facilitative assistant from a neutral third party. In the mediation audio, upon commencement of the mediation, the mediator describes the whole process as the role of the mediator and the disputants are advised that mediation takes a consensual procedure and that the mediator only plays an impartial facilitator. The mediator also clarify that he holds no power to enforce a solution and confirms to the disputants that communications held amid mediations are confidential. It is the roles of the mediator to maintain confidentiality in all information obtain during the mediation process excluding where information confession is required by law. Unless all the disputants agree otherwise, all oral and written communications during mediation process remain confidential and inadmissible. The mediator controls and manages the mediation process. The disputants may communicate surreptitiously with their attorney in the course of mediation. The mediator has the authority to impede the mediation any time any set follow up meetings if he finds follow up meeting to be meaningful and productive. If there is no agreement met, the mediator may report lack of consensus to the court without commentary or recommendation. Entering into mediation does not mean that the parties involved forfeit their legal rights or remedies. Incase there is no settlement each party can freely enforce their rights through a suitable court or tribunal process. However, upon reaching to an agreement on whichever issue, such agreement have to be written and signed by the disputants and their attorneys then submitted to court (Bush & Joseph, 1994). Identification of areas of personal strengths and weaknesses The mediation in this case offers an ideal opportunity for a constructive dialogue in regard to disputants’ differences. In the audio play the mediator tries to establish a safe atmosphere in which both parties will listen and understand one another. He has attentively clarified the interests of both parties to get to a mutual understanding. However, in some cases there arise behaviors that instigate increased resistance of the other disputant. In this part of the analysis we identify several resistance revoking behaviors and some constructive confrontation amid mediation. The dispute initially rose from single factor both a multiplicity of factors evolved ranging to heavy down pours that halted the work to financial inadequacy that seemed to strain the contract, to engaging a new contract before completion of the first contract a thing that sent the wrong signal to the complainant (Billikopf-Encina, 2002). The mediator seems to intervene and eliminate some confrontational argument that may communicate disrespect hence. This may not necessarily lead to agreement in mediation but it saves the mediation from backfiring. There also seem to have differences between the disputants; perceptions within the context of the dispute. Each party fills justified for the reason they raise, such a strong defensive attitude slows down mediation because it is hard to reach to a compromise. Trying to moderate conversation between the parties is a hard task it involves encouraging cooperation through engaging the parties in alternating and calm conversation. The mediator though tries to engage the party in the activity is at time triggering tough verbal confrontations in form of accusations. It is difficult to tell whether the disputants any genuine respect for the other party given that the mediation comes with bad feeling towards the other party. Though normal for an individual to react, the disputants know well that engaging in such activity may be counter-productive it seem in this case it is hard for them to resist engaging in them (Bush & Joseph, 1994). Some of the things that threat mediation include: a. Denying information known to the other party. She took another contract and opted to start with it ignoring the one that led to this mediation. She openly tries to blame the rains abandons the former and endorses the later. b. Communicating condescension; i.e. one disputant implicating the other party c. Questioning the other disputant’s integrity d. Insisting the other party is wrong. e. One disputant taking moral judgments on the other party f. Interrupting the other party in the mid of the talk Misunderstandings can create a block to identification of ways to resolve prevailing disputes. This problem can be minimized through effective listening. Some of the behaviors that facilitate understanding and encourage listening include; a. Use of I rather than you statement; this has repeatedly been used by both disputants in the conservations. b. Conveying that the disputant have attentively paid attention to the conversation. c. Expressing a desire to have the desire of their disputant fulfilled d. Expressing the desire to have everybody’s desire met. e. Acknowledging all responsibility where the problem points to an individual in particular. f. Acknowledging other party’s perceptions g. Identification of areas of agreement. h. Avoiding assumptions. i. Acknowledging good points from the other party Many of the aforementioned behaviors either promote cooperation or resistance between the parties in mediation. These same effects can be observed in parleys which hardly involve the mediator. The challenges in the audio play involve those of values, customs, mores, laws and norm. The participants in the mediation seek to dramatize their belief and push the fellow disputant to motivating them to action (Linden & Jon, 2000). Referenced personal analysis and discussion of the mediation skills and processes used and your current practice orientation Observations of the disputant behaviour during mediation, can suggest that in ostensibly in obstinate conflicts desire to constructively confront their dispute. This can only occur when they avoid all the aforementioned behaviours and engagement in behaviours that encourage listening, cooperating and understanding. Constructive confrontation requires communication that truly acknowledges differences between the disputants and confrontation that demonstrates value for the rights and dignity of all the parties. Constructive confrontation can take place when participants cooperate with one another either directly or indirectly. Direct interaction in most cases take place in a public forum i.e. demonstration or debate where individual get an opportunity to express their opinions, concerns and raise questions in the presence of fellow disputants. The suggestions only have relevance for the participants who desire to confront their dispute constructively. These suggestions cannot by themselves solve the disputes. However, according to observations of disputants who in past experienced success in mediation, there is conclusive evidence of the type of behaviours that avert intensification of conflict, thus promoting a civil climate where meaningful, thoughtful discussions occur. Such are potentially useful initial steps towards constructive confrontation that seem intractable (Zumeta, 2000). Advantages of this mediation There are numerous advantages attached to this mediation over alternative method of dispute resolution method i.e. civil litigation. It is important to keep in mind that the judge is responsible for interpretation of the law and the role of the mediator is reconciling the disputants fairly and equitably. Zumeta 2000 states that mediation is an inexpensive way of getting a solution to any prevailing dispute: a specialized construction dispute mediator will charge on hourly basis and the mediation takes utmost two days. This is far much les than a civil litigation time waste away from business matters. Preparation for a mediation is far easy that the requirements of an arbitration or litigation. There is no necessity for the presence of an attorney though they may participate upon request by the disputants. The moment an individual chooses a binding mediation it has a similar finality to a binding arbitration less formalities and costs attached to binding arbitration. In numerous cases, the mediations are held at the residence of the dispute. In most cases the mediator is well acquainted with the issues in dispute. They assist the parties in reality of both their position and opinion. They are no charges attached to court filing and similar expenses. Compared to litigation it is a fast process, they take fewer time. The disputants in the mediation process are full participants and express their own concerns and opinion. Mediation allows the parties to discuss and reach a settlement. After the settlement, another dispute that may arise is considered as a new and do not affect the previous settlement. Table:1 MEDIATION ARBITRATION Desire to safeguard the ongoing relationship Necessity to offset power disparity Emphasis on prospective dealing Wish for decision on past events Need to evade win-lose decision Escalating volume of dispute Disputants desire total control Need to compel involvement Dispute has numerous parties and issues Premium on privacy and speed Absence of comprehensible legal entitlement Premium on finality Source: The mediator's handbook: advanced practice guide for civil litigation If a major dispute escalate in the commencement in the mid of the construction another mediation can be set this will minimize time wastage and lower the costs. Thus allowing the project to go on in a timely manner, it is not unusual to get several mediations in a single project. This method is so informal that the disputants’ contract does not recognize any other option; it abides all parties in to a contract (Billikopf-Encina, 2002). Conclusion According to Billikopf-Encina, (2002), all parties in mediation got a chance to check the background of their familiarity of the mediator. Mediation is a private process and is not subject to public knowledge and likely media concentration as it happens to civil litigations. Incase the mediation has been scheduled as a med-arb practice it acts as a guarantee of full settlement on all issues by the end of med-arb procedure. Where there are full settlements and the agreement is drawn, such an agreement can be enforced in a court of law. Mediation protects the disputants from more problems associated with civil litigation like punitive awards. Mediation process lacks a jury, thus there are no risk of huge superfluous award. An experienced mediator, fully acquainted with the construction industry is a seasoned professional who is unlikely to be influenced by sentiments and superficial arguments. There are limited discovery in mediation, this confirms that if mediation involves the attorneys to disputants, can hardly pursue the onerous fishing expectations, which occur in the ordinary civil litigations. in mediation there are no class action litigation, this substantially reduces incentives to plaintiffs’ lawyers thus eliminating the dangers associated to large awarding that are based on accumulation of claims. Most of the construction cases taken to court are remanded to mediation to check if they can achieve comprehensive result from there. Reference Billikopf-Encina, G. (2002). Narrative Mediation: A New Approach to Conflict Resolution. International Journal of Conflict Management 100- 104 Bush, R & Joseph F. (1994). The Promise of Mediation: Responding to Conflict Through and Recognition. Bass: San Francisco. Etcheson, S. (1999). Transformative Mediation: A New Current in the Mainstream; Policy Studies Journal. Linden, Jon. (2000). Mediation Styles: The Purists vs. the ‘Toolkit.’ Retrieve from: www.mediate.com/articles/linden4.cfm John W. (2002). The mediator's handbook: advanced practice guide for civil litigation. Mayer B. (2002). The Dynamic of Conflict Resolution; Josey-Bass: San Francisco. Russell, Rick. (2002). Conflict Analysis in Relation to Mediator Strategy and Type. Retrieved from; www.mediate.com/articles/russelr.cfm Wall. J, John B. & Rhetta L. (2001) Mediation: A Current Review and Theory Development.” Journal of Conflict Resolution. Zumeta. Z (2000). Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation. Retrieved from; www.mediate.com/articles/zumeta.cfm Apendix Table:1 MEDIATION ARBITRATION Desire to safeguard the ongoing relationship Necessity to offset power disparity Emphasis on prospective dealing Wish for decision on past events Need to evade win-lose decision Escalating volume of dispute Disputants desire total control Need to compel involvement Dispute has numerous parties and issues Premium on privacy and speed Absence of comprehensible legal entitlement Premium on finality Transcript The transcript below commences at the 10 minute mark extending to 23 minute mark. Timer Speaker 09:49 Ali (Mediator): Ready? My name is Ali I am the mediator today. Please introduce yourself today. 10:35 Lillian: I am Lillian the manager of MACE construction 11:30 Jack: I am Jack; i want to build my house 12:15 Ali (Mediator): We have an issue here and i would like to listen to each one of you from his own perspective 13:56 Lillian: I have been trying to have this job done but we had a lot of rain and distraction and our whole company has fallen behind the job. And we got another work t we started. I just not filling there have not been enough communication. 14:49 Ali (mediator): the problem here is not finishing the work? 15:10 Lillian: Yes, i need some extra $5000 to complete the work 15:22 Jack: the thing is that the company is taking wrong to complete and they want to get more payment. I want job done first then the money. They have not reached the amount of the money $20000 i paid them yet they need more $5000. 18:41 Ali (mediator): .Did you listen to the reason, why the delay? 19:01 Jack: i think they want to complete the job the more they stay in job the more profit they make. 19:34 Ali: Did you listen to the reason 20:10 Jack: yes they said the rain and...   20:02 Ali: So...do you believe them 18:42 Jack: i believe them but they should have put consideration on the rain. I do not know why they have not do the job 19:13 Lillian: what was in you contract, did you added provision for extra cost. When we gave the estimate we did not account for extra cost. We intend to do the job well now that the rain is got that is why we need $5000. For the extra coat that will cater for drainage. 18:41 Ali (mediator): so he gave the ten thousand dollar? Would expect to finish to finish the job. 19:01 Jack:  we took another job and we were working under tight schedule. If we get the money we would finish the job quickly 19:34 Ali: so it is not about the promise it is about the money. Am sure it is not the money they are working on other work 20:10 Jack:  what I am hearing is about trust for the money we took the job on when we were on a tight schedule 20:02 Ali: is there any way we can keep the job done Read More