Mediation and resolution of disputes
There are many techniques of dealing with dispute management and resolution, which varies from minor to the major ones. Disputes may be avoided, negotiated, discussed arbitrated, resolved by the law or by violent force. Parties that fail to effectively negotiate and come up with a solution looks for a mediator to facilitate the process of mediation. Mediators play various roles and may enter a dispute at various levels of development or magnitude (Fisher 1995, p 86).
There are three general roles that are played by the mediators. There are authoritative mediators, social network mediators and independent mediators. Authoritative mediators are those people who hold some authority positions within the parties, for example a director or a manager. There are various differences within the authoritative mediators. They may remain neutral to the result, or may comprise vested interests in obtaining a specific settlement. Mediators of this kind are usually in a position to use their authority to enforce solutions.
Social network mediators are often respected members of the society who have healthy relationships with the parties. They are usually not neutral but fair. This kind of mediators is often concerned with maintaining healthy and long-term relations. Usually, the social network mediators remain with the parties once negotiations are over, and are involved in agreements implementation. They are usually in a position to draw on social and peers pressure to come up with agreements.
Independent mediators are well recognized by their impartiality and objectivity. They are interested in assisting the parties develop intended and mutually accepted solutions. These mediators generally lack previous relationships with the parties. The model of an independent mediator is mostly adopted in western countries nevertheless it is increasingly being adopted by other cultures.
Skills applied by mediators
All the types of mediators usually employ two comprehensive classes of skills contingent skills and general skills. Contingent skills are the ones employed to deal with the social problems that are likely to arise in the course of the negotiations. These skills may be used to tackle problems such as value clashes, imbalances of power, and patterns of interactions that are destructive, problems of communication, analyses that are differing, misinformation and strong emotions.
General skills are intervention types that are used by mediators in nearly all disputes. They comprise skills of entering the conflict, conflict analysis, mediation planning, parties interests identification, facilitation of the negotiations and assisting parties come up with proposals, creation of implementation plans and drafting agreements. A major activity of the mediator is to realize the causes of the dispute, and to come up with a hypothesis as to how the dispute may be dealt with.
According to Volkema (1999, p104), there are a number of aspects which determine the choice of strategies of mediation. These aspects include the level of the dispute and the abilities of the parties to resolve their conflicts, the power balance among the parties, the kind of negotiation procedures to be applied, the complexity of the issues, and the parties expectations from the mediator. In developing a mediation strategy, the mediator must know the stage, aim and focus of the intervention. It is the decision of the mediator on whether to put emphasis on the stage of general problem-solving, or on a particular issue.
Mediators may enter into the conflicts either by the parties request or through appointment by a legitimate third party. At this juncture, the mediator has four major tasks. The first one is that heshe must develop credibility with the disputed parties. The parties are supposed to have trust in the mediator himherself, the chief organization of the mediator, and the entire mediation process. Secondly, the mediator has to develop a relatively close and stress-free relationship with the parties.
The third task is that the parties must be well informed about the mediation process, because it is in due course the parties themselves to solve their conflicts. This information assists in building confidence within the mediation process. The final task is that after all these steps it is the responsibility of the mediator to secure the parties dedication to mediation. This dedication may vary from a formal written agreement to an informal oral agreement, depending on the situation.
Mediators may choose to instigate contacts with parties by letter, phone, or in person. Where there is some hindrance to contacting parties, it is vital a mediator to be introduced by a secondary party. The mediators entry timing depends upon the intended type of intervention. Interventions to gather data on the dispute can be performed at nearly any time. Interventions that are delayed may make the issues to develop more fully and the parties to have exhausted there ability and desire to carry on with the dispute. Interventions that are early may lead to more cooperative, less coercive and better relationships.
As Tannen (1994, p172) puts it, after entering the dispute, the parties and the mediator have to cooperate and come up with a mediation strategy that best fits their situation. There are six ways in which a mediator may assist the parties in coming up with a mediation strategy. The first one is that the mediator can assist the parties in discovering the interests that are to be compromised in the conflict and to give clarity on their required goals. Secondly, mediators can assist the parties identify a variety of possible, and acceptable results. The results may be a benefit to both parties a drawback to both parties or benefits one and harms the other.
Thirdly, the mediator should explain the fundamental types of strategies for resolving conflicts. The fundamental strategies are avoidance, competition, accommodation, a compromise that is negotiated, and a negotiation that is interest-based. The fourth fact is that the mediator can assist the parties to clarify the schedule that will direct their strategies choice. The choice of the strategies by the parties will depend on time constraints, the kind of their desired or current relationship with the rival party, their legitimacy and by the internal dynamics of the parties.
The fifth thing is that mediators can assist the parties in options weighing and coming up with a decision. The final thing is that the mediator can help the parties harmonize their strategies into a rational approach to the conflict.
Effective collection of data
Generally, mediators cooperate with parties for the conflict analysis. Analysis of dispute starts with collection of data guided by the mediator. There are six activities that can be done by the mediator to promote effective collection of data. The first activity is the mediator to provide a fundamental structure for understanding disputes. The mediator then decides on the effective methods of data collection. These data collection methods include direct observations, use of secondary sources like financial records and maps and interviewing of the parties.
Thirdly, the mediator may hand over the real work of data collection. Interview, for example, will be more revealing provided that the party identifies with the one interviewing them. Fourthly, these activities of data collection should be linked to the larger strategy of data collection. This strategy should comprise of an approach to discovering all the required parties to the dispute, a schedule for timing and order of the interviews and a schedule for building connection with the parties. The fifth activity is that the mediator should come up with an approach of the interview. The interviews can be structure or unstructured, unfocused or focused, joint or individual. And the last activity is that the mediator must come up with a decision on the types of questions to use for the interview and must listen keenly during the interviews.
Effective mediation process
According to Folberg and Alison (1984, p79), the opening statement of the mediator gives an introduction of the mediator and the parties. It also gives a definition of the role of the mediator, explains the procedures of mediation including the neutrality of the mediator, explains the format of the meetings, and proposes behavioural directions of the sessions. At this point, the mediator may respond to questions from the parties. Each of the parties then makes opening statements. These statements usually focus either on substantive issues and interests or some position that is non-negotiable.
Cultural dissimilarities may play a remarkable role in the commencement of negotiations. In cultures that embrace social network mediators, the starting of the mediation may involve conversations that are more informal and sometimes even drink or food. Authoritative mediators embrace arrangements that are more formal. This is usually a desirable way of showing regards in cultures that are more hierarchical. The styles of communication also differ across cultures.
The task to follow is the setting of the negotiation agenda. The parties will be required to discover the comprehensive topic areas that they are concerned with, identify appropriate contention issues, and come up with the order in which those issues shall be tackled. Disputes vary in the vagueness and complexity of their issues. Usually, disputes can be value-based or interest-based. The disputes that are value-based are less amenable to concession and integration, and therefore mediators should avoid explaining conflicts in terms of differences of value if possible.
The activity of issues definition is referred to as reframing. Mediators assist parties to reframe the issues in a manner that will bring about efficient solving of problems. Conflicts that are interest-based can be reframed by enlarging or focusing the issues while those that are value based can be reframed by regarding the issues as interests and avoiding the value elements.
Reaching a solution
Having come up with a range of solution options, the next thing required of parties is to examine those options. A settlement range of the party is defined by the gap between the target point and the resistance point. Their best possible outcome is the target point. The point of resistance is determined by those results that are more costly or not advantageous enough to be accepted, that is under the partys best alternative to a negotiated agreement. Bargainers that are interest based will go for the solution which avails optimum mutual benefits (Rosen 1992, p94).
After examination of the options, a final bargaining stage is entered by the parties. At this stage, the parties negotiate and come up with an agreement. Sporadically an agreement will have directly come from the stage of evaluation. However, there is usually various potential agreements, some aspects of disagreements, and some details to be arrived at after the stage of evaluation. There are a number of strategies that are used by mediators during this stage.
In a strategy known as incremental convergence, each party makes small dispensations until they attain a consensus. If positional bargainers make use of this strategy, the major task of the mediator is to ensure that parties are comfortable while making dispensations. Within the leap-to-agreement, the parties involve in some introductory bargaining, but then directly leap into a wider proposal.
In the strategy of agreement-in-principle the parties initially look for a consensus on general principles, and then look forward to use these principles in solving the current situation. This strategy is very necessary when one wants to avoid negotiation deadlocks. When the parties fail to obtain a substantive agreement, they apply a procedural strategy. This comes up with a substantive answer.
There are five mostly used forms of contingent mediator skills in handling special situations. These skills are pressure of the mediator, caucusing, power relation management constituency management and teams of negotiations. Caucusing permits the mediator to privately communicate with one party away from other parties. Causes may be applied by mediators to discuss private information, discover settlement range of a party, timing and setting of negotiations and discussing a negotiation strategy of a party.
Mediation is more effective when the power relations of the parties are symmetrical. When the power relation is asymmetrical, then the mediator has to ensure that there is a balance between parties powers. In the course of balancing these powers, the mediators avails the suitable underpinnings of power to the negotiator that is weak. In such instances, the mediator will help those negotiating to have an effective communication with their constituents (Bush and Joe 1994, p221).
Conclusion
Mediation is a field that is broad and rapidly growing. Today, there is a good number of professional mediation organizations, which are putting emphasis on mediation like that of divorce to a mediation of public policy. The paper has discussed in details the skills required by mediators in handling any kind of mediation. On a general point of view, a good mediator according to the codes of ethics is supposed to be impartial, primarily to avoid disputes of interest.
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