Mediation and Negotiation Theory and Practice - Managing Workplace Conflict In Australia - Essay Example

1. Mediation Theory and Practice Introduction Workplace conflict is explicit, as it refers to conflicts that arise in the workplace. These conflicts are shaped by distinctive features of the workplace setting, such as the length of time employees spend at work, the organizational structure of organizations involved, and the apparent challenges of having to change jobs. Workplace conflict is caused by various factors, including personality differences, individual challenges such as family problems, substance abuse, or issues pertaining to childcare(Turner & Weed 1983, p. 12). Other factors include management and leadership problems, and disparities in what is considered as core values of an organization. The challenge of workplace conflict is further compounded by scarcity of resources and ineffective channels of communication. Alternative Dispute Resolution (ADR) Alternative Dispute Resolution (ADR) methods do not involve judicial proceedings, and they include mediation, arbitration, negotiation and conciliation. Problems and challenges that arise at the work place can be resolved through ADR techniques, which provide effectual and cost effectives alternatives to dispute resolution, as opposed to courts or employment tribunals. Benefits of mediation In mediation, impartial or independent third parties confer with the employer and employee over issues in dispute. The mediator may meet both parties separately, or together to arrive at an acceptable solution amicably and faster. Mediation is a voluntary process that parties involved must accept to be part of. Mediators do not impose solutions, but assist parties in dispute to reach an agreement. It’s more effective when the process is initiated immediately a dispute arises. The employer generally pays for the service, which can also be used to resolve disputes between employees. Previously I believed it was definitive and cost effective to have a third party decide the outcome of a dispute. Apparently this led to parties dissatisfied and unhappy with the outcome as they were not given chance to express their opinion. For disputes that are emotionally charged such as divorce, both parties must be guided through the mediation process in order to arrive at amicable agreements. Mediation as opposed to court proceedings has several advantages. Economic considerations such as the high costs of judicial proceedings render mediation and arbitration cheaper options for dispute resolution. The fees charged for mediation varies according to the duration of the meeting and the rate per hour that the mediator charges. Another significant advantage of alternative dispute resolution is the short duration the proceedings may take as compared to traditional judicial proceedings. The mediation process takes a very short time, which makes it a more time effective method than even arbitration. Mediation is traditionally a very informal procedure as compared to arbitration, and subject to individual personality considerations and the complexity of the issues involved, mediation provides a very effective and flexible method of resolving disputes The difference between the mediation process and court proceedings is the effort disputants employ in reaching an agreement out of court. Parties in dispute in essence are obliged to find mutually satisfactory solutions without imposition from third parties such as arbitrators or judges. Mediation is particularly effective and efficient since hostility, bitterness and externally generated complications are reduced to minimal level. Mediators in essence are professionals who employ proven negotiation skills and communication methods in guiding parties in dispute to reach mutually acceptable agreements. Solutions that are found through mediation are mutually desirable since parties involved have the freedom to express their anxieties and opinions, which enhances more effective communication. Mediation is essentially appealing to parties in dispute as they get the chance to actively participate in resolution proceedings. The mediation process is traditionally very confidential and informal, and it offers significant flexibility in its procedure and the evidence that is produced. An independent third party guides the discussions and the decisions reached without victimization or judgment from the public. Information obtained in the process of mediation is confidential unless disputants agree in written to disclose it. Confidentiality in the mediation process in essence enhances the freedom of parties in dispute to express themselves without fear of intimidation or victimization Therapeutic models v Bargaining models Therapeutic mediation is a conflict resolution process where a third party is invited to assist disputants not only to resolve the conflict, but develop a mutually beneficial relationship between them. Mediators in this role do not advice either party, or determine the content or outcome of the process, but guide them to a mutually satisfying resolution. As exemplified in dispute resolution between employers and employees, such a process is essentially a bargaining process that employs significant negotiation. In contrast, therapeutic mediation traditionally referred to as counselling focuses on emotional aspects of people in dispute. As demonstrated by Thornton (1990, p.19), therapeutic mediation in disputes that involve discrimination focuses on acknowledging and working through the prevailing hostility between disputants. Counselling skills are in such cases employed by mediators to reveal inherent personal beliefs and interests, and thereby arriving at a mutual agreement. A strategy of clarification serves as the key technique used in such instances, and this serves three functions. Disputants are first made aware of the factors that can influence their decisions. It prepares them to cope better through the process by reducing anxiety and disbelief. Through counselling, disputants are encouraged and motivated to overcome past experiences and concentrate on future prospects. Interaction between disputants and counsellors builds a sense of care and support often lacking in organizational settings such as work places. Mediation in family disputes is voluntary, and may come either after or before judicial proceedings. Judgement in this case is made in consideration of the bargaining power of individuals, possible risk of violent behaviour, and the psychological implications of the dispute. Former professional registrars with training in social sciences are normally employed to guide the mediation process. Therapeutic mediation has also been effectively used in restorative justice where offenders and communities are not only made accountable, but are obliged to give back to the community in which they contravened the law. Directive v non-directive models In directive models of dispute resolution, the mediator couple up as the investigator and decision maker, and determines which party is right, and which one is wrong. The approach is directive in the sense that the mediator provides a logical framework that guides the process of resolving the dispute. Non-directive methods of dispute resolution in contrast, focus more on upholding the respect and dignity of disputants. Social workers and psychologists with training in dispute resolution guide the processes. The focuses of non-directive methods is to provide an enabling environment for defendants and claimants to freely talk to each other, and its what they have to say that is given precedence. More emphasis is laid on assisting disputants communicate better, and this requires several meetings to achieve. Disputants are given chance to make suggestions on how best the dispute can be resolved. Stages of mediation in practice and the role of the mediator Our workshop on mediation focused on development of mediation skills, where we assumed the roles played by a mediator, a complainant and a respondent. These sessions proved very helpful and boosted my confidence. But I found disparities between mediation theory and practice in the sense that despite outlined stages that the process should be undertaken, I had an inherent urge to push the parties and process to a faster conclusion through suggestions and coercion. As the mediator during our team sessions, my duties involved initiating objective communication between the disputants. My job required me to assist disputants to understand the issues underlying and to focus on realistic expectations. I helped the parties understand the areas they had similar views, and where they were in conflict. A critical responsibility I undertook was to explore systematically the mutual benefits available considering the issues in dispute, and helping disputants to focus more on realistic mutual expectations. My goal was to assist in generating alternatives that met the interests of both parties, while managing the decision making process to arrive at a win-win result. The ultimate experience was that as a mediator, my duty was to guide the process by reframing issues, ensuring effective communication and finding areas of common interest. There are five stages of mediation, and each stage serves a specific function or task. Segments of mediation have a specific action which is meant to bring about a particular end result. These stages were developed by Professor Randy Lowry. The first stage involves obtaining permission from disputants to discuss the problem, which can be done through general conversations on relevant topics. The second stage involves an open discussion with both disputants to gauge their expectations from the process. At this stage the objective is to build an atmosphere of hope that the dispute will be resolved amicably. The third stage focuses on enhancing better communication and understanding between disputants. This is done through open ended questions to disputants as they are encouraged to reveal their opinions. The objective of the session was to enable disputants bring out inherent interests or values. This is followed by active negotiation, where disputants actually bargain. This requires active intervention of the mediator since disputants both want to have their way; suggestions from the moderator emerge to be vital, this assists disputants to focus on realistic expectations. The fifth and final stage is the closure of the deal. This involves preparation of an agreement or memorandum of understanding which is signed by disputants. Both parties are lauded for the valuable contribution they have made towards reaching an agreement amicably. 2. Fairness and Justice in ADR How is justice measured? Justice is determined by the probability of involved parties getting a fair hearing, within the shortest time possible, and at minimal cost Why is it relevant in ADR practice? ADR enables disputants to explore options outside the judicial system, while those unable to are encouraged to seek assistance from courts. ADR and Legal Aid system are not contradictory, as they both form the fundamental pillars for accessing justice. Do we need a code of practice for workplace mediators ( important) Mediation in the work place should be regulated by a code of practice to enhance the confidence of disputants in disclosing information vital in reaching beneficial mutual agreements. The mediation process is conducted in an atmosphere that guarantees confidentiality of information disclosed in the process. Mediators must then be bound by regulations that prohibit them from disclosing any details from the process unless the issues are already in the public domain, or with permission from disputants. This cannot be achieved effectively without a stipulated code of conduct that binds mediators. Mediators are also required to remain impartial in the process. They must ensure there is balance of power and fairness, and hence must have authority to terminate the process if they consider it ineffective in achieving the required end result. During the mediation process, documents and sensitive information are produced, and the code of practice will ensure that such material is not disclosed except with permission from parties involved. 3. Negotiation Theory and Practice The modern development of negotiation theory. In a world that is becoming increasingly globalized, practitioners and theorists in diverse fields are developing and utilizing various approaches in analyzing and improving various aspects of negotiation. The emerging theories are varied, and often portray features that exemplify perspectives of the varied disciplines from which they have emerged. Henry Kissinger defines negotiation as, “process of combining conflicting positions into a common position, under a decision rule of unanimity (Kissinger, 1994, p. 47). According to researcher and theorist I. William Zartman, there are five core approaches or theoretical categories in negotiation. These include the structural approaches, the strategic approaches, the procession approaches, behavioral approaches and finally, the integrative approaches. The structural approaches focus on structural aspects of specific negotiation. This includes characteristics such as the number of disputants, issues to be addressed and the composition or balance power of disputants (Baracharach and Lawler, 1981, p. 75). Negotiation theory in the structural perspective views negation as conflicting opinions of parties with incompatible objectives. Relative power between opponents is critical in this approach (Baracharach and Lawler, 1981, p.78). Individuals in this approach have the tendency to use their power to influence negotiation outcomes. In the strategic approach, the expected end results determine the outcome of the negotiation process. Negotiators are guided in decision making by the options they consider will fetch them optimum benefit. Parties are motivated into action by consideration of costs arising from different options. The behavioral theory lays emphasis on the personality or character of individuals in shaping the end result of the negation process. Behavioral theories portray negotiation as a weave of personality interactions, and categorize personality types into groups, for example soft liners vs. hardliners The concession theory combines features of structural approach and strategic approach. Negotiation is viewed to involve a sequence of concessions. Parties involved make suggestions which are meant to influence their opponents. In contrast, the integrative approach views the negation process as driven towards a win-win outcome. The focus of the integrative approach is to find resolutions where all parties in dispute reach a mutual agreement. The approach is largely objective, and negotiation is guided by deliberate initiatives for mutual benefit, and critical to this end is emphasis on communication and information exchange. The relationship and tensions between negotiation and mediation Mediation and Negotiation are not homogeneous approaches in ADR, and neither are they distinct. Both involve a series of interrelated processes that involve actors, decision making, significant resources and varied circumstances. The two approaches are largely flexible in how decisions of agreement are made. The approaches of mediation and negotiation involve behavioural attributes that vary from formal processes to informal ones, and this is normally in the discretion of parties involved But negotiation and mediation are used in definite circumstances unique to either approach. Negotiation is preferred under several preconditions, and they include; Minimal chances of reaching a mutual agreement through aggressive effort, or by parties withdrawing or remaining indifferent. Little value in dispute objectives, in consideration of arising costs. Similarity or compatibility in party interest, or high probability for mutual benefit as opposed to prolonged dispute Flexibility of opponents in considering the option of negotiation. These conditions also apply in mediation, but extra conditions are considered essential for mediation to take place. Mediation is preferred over negotiation when the conflict is likely to be prolonged, or intricate. Secondly, mediation is preferred when the parties’ efforts in resolving the conflict have failed, or there is outright antagonism and indifference. Thirdly, a willing mediator should be available, and there should be a high chance that the mediator will make a difference. Lastly, the opponents must consider this to be a more effective and beneficial approach to resolve the conflict. It however remains unclear why any of the approach should be preferred over the other. Apparently, the decision as to which method is preferable is subject to the context or conditions of the dispute. Reference list: Bacharach, S B & Lawler, E J 1981 Bargaining, power, tactics, and outcomes, Jossey-Bass, San Francisco Kissinger, H 1994, Diplomacy / Henry Kissinger, Simon & Schuster, New York Landau, D 1972, Kissinger: the uses of power, Houghton Mifflin, Boston Turner, S & Weed, F 1983, Conflict in Organizations, Prentice-Hall, Inc., Englewood Cliffs NJ. Thornton, M 1990, The liberal promise: anti-discrimination legislation in Australia, Oxford University Press, Melbourne Read More