Mediation

Introduction

The mediation process is an efficient dispute resolution mechanism that involves the help of a mediator. The parties of the dispute are able to develop options after identifying the disputed issues, taking into consideration the proposed alternatives, and finally reach an agreement. The mediator is usually a member of the Tribunal or any other individual appointed by the jointly formed Tribunal. Given that the mediator has minimal determinative and no advisory role concerning the content or outcome of the disputed issues, he thus plays no role in determining the nature of the resolution reached by both parties. In addition, the mediator plays an essential role in the management of the mediation process and dispute resolution by influencing the nature of the negotiation process. There exist different forms of dispute resolution mechanisms that can be adopted in the course of the mediation process. These mechanisms are unique in nature as they differ in terms of their effectiveness at the different stages of the intervention process. They include a problem-solving (facilitative) approach, a transformative approach, and a narrative approach to mediation, and they vary at each phase of the mediation process. Current paper is aimed at comparing and contrasting three approaches to mediation at each mediation phase.

The Four Phases of Mediation

The four different stages of mediation include preparation, the initial stage, the primary phase and the final part of the mediation. The first stage involves preparation and mediator’s opening statement. It involves the summary description of the mediator’s role in the process, the role of the disputants, the nature of the mediation process, and, finally, the establishment of the ground rules.

The second step involves the mediator’s summary and parties’ reviews. At this stage, the mediator notes the emerging needs and options for the resolution that would be used later in the course of the mediation process. In addition, the parties involved in the conflict present brief statements of the conflict or dispute from their perspective. Additionally, the identification of the issues is done at this stage. This phase is important for ensuring that each parties’ concerns are taken into account, while also a positive conducive social atmosphere is created.

The third phase of the mediation process is the primary one, and it involves a joint exploratory discussion, a private meeting, and collective negotiation. The interests and needs of the disputants are clarified, and there is direct communication between the conflicting parties in addition to private discussion of their issues. Thus, this phase ensures that the parties that are not comfortable with a joint discussion can be able to generate options, negotiate and come up with realistic proposals. Joint negotiation enables different parties to solve their problems cooperatively and arrive at mutually agreeable resolutions.

The fourth and final phase of the mediation process involves the mediator and disputants to discuss the issues of concern and available resolution mechanisms. The final phase must be jointly delivered by both parties and the mediator. It is an essential stage given that it influences the resolution of the dispute at hand.

Different Styles of Mediation and Their Similarities and Differences at Each Phase

Problem-Solving Approach

This method is also known as the facilitative approach to mediation, in which the mediator aims at helping parties to identify and explicitly express their needs and interests. The goal of facilitative mediation is to generate a mutually beneficial and acceptable settlement of the dispute (Bush and Folger, 2004). It assumes that the parties will reach a mutually beneficial compromise. The mediator plays an essential role in highlighting the areas for compromise and trade-offs by providing a realistic assessment of the disputing parties’ negotiating positions in accordance with their legal rights. This approach to mediation is commonly used in the instances when the parties are involved in issues related to money. The problem-solving approach is often used by mediators to resolve disputes concerning a single issue, usually the financial one, because it primarily focuses on the problem at hand. In addition, the facilitator encourages each of the parties to explore the experiences and data that is related to the problem at hand, thus fully incorporating the underlying interests and individual needs.

The facilitative approach primarily uses the information that relates to the specific issue and any other problem-related data during agenda setting and joint discussion phases. However, by focusing only on the problem-related information, it ignores the broader questions that relate to the identities and relationships between the disputing parties. The nature of this problem presents the major shortfall of the problem-solving mediation approach, as it shows a significant departure from the underlying issues and needs of the parties (Moore, 2003). Given its pragmatic nature, the facilitative approach ensures that different parties resolve their problems amicably by compromising over their needs and interests. Additionally, this approach to mediation ensures that all the issues surrounding the problem are properly addressed to prevent any future occurrences of similar problems. It also presents an excellent opportunity for the improvement of the future relationships between the two warring parties given the nature of the mutually beneficial agreement for the two sides.

The problem-solving approach differs from the transformative and the narrative approaches. In the initial phase, the mediator is more substantially involved, compared to other methods, given that he/she is required to set time limits. In addition, the facilitator encourages the disputants to stick to the time limits by motivating them to meet the deadlines. While preparing for the mediation process, the primary goal of the problem-solving intervention established in the initial phase is to create a short-term solution to the immediate problem. As result, this method represents a significant departure from transformative and narrative approaches which are long-term centered. In the primary phase of the mediation process, the role of the mediator is overemphasized when compared to other intervention techniques. The mediator single-handedly directs the negotiation process from start to finish and is minimally responsive to the parties during the primary phase of the procedure.

Transformative Approach to Mediation

In the transformative mediation, mediators are significantly involved at every stage by focusing on the transformative potential of the mediation process. The transformative approach to dispute resolution presents a significant departure from the traditional problem-solving approach which primarily focuses on resolving the immediate conflict. Rather than focusing on solving the issue at hand, the transformative approach to mediation seeks mutual recognition and empowerment of the parties involved in the dispute (Bush and Folger, 2004). The two aspects of empowerment and mutual recognition are essential to the whole mediation process, as they create a suitable environment for nurturing a mutually-beneficial and mutually-agreeable solution (Bush and Folger, 2004).

The transformative approach to mediation relies on the empowerment of the disputing parties so as to enable them to resolve their issues amicably. In addition, this model relies on the aspect of mutual recognition of the parties in order to allow them approach the issues facing them with an open mind. On one hand, Bush and Folger (2004) define empowerment as the mechanism that can be used by the parties of the dispute to identify resolutions themselves and to define their own issues. On the other hand, mutual recognition is defined as the ability of the mediator to enable each party to see and understand the opposing points of view (Bush and Folger, 2004). Mutual recognition allows participants to understand each other’s perspectives by first understanding the problem at hand. Furthermore, it also fosters speedy resolution by ensuring that the disputants understand how to define the challenge and why they are seeking a lasting solution to this problem.

Both problem-solving and transformative mediation methods have one similarity. They both employ a third party who is tasked with assisting the disputing sides to reach an amicable solution. The mediator is thus substantially involved in the initial phase of the mediation process rather than the later stages, especially given that he or she is required to determine the nature of discussions. However, significant differences exist between the two models with the specific regard to the assumptions about the conflict, the ideal response to the conflict, and the goal of mediation. Additionally, other differences are inherent to the role of the mediator in the mediation process, the actions of the regulator, and the use of time in the course of the dispute resolution process. On one hand, in the facilitative or problem-solving mediation, the definition of success of the mediation process includes a mutually agreeable arrangement between the disputants. On the other hand, the transformative approach defines success as a factor of mutual recognition and empowerment that enables the parties to approach the dispute in a stronger way and with an open mind.

The problem-solving mediation assumes that conflict is a short-term problem that is in need of a solution. However, the transformative approach to mediation assumes conflict to be an opportunity for transformation and moral growth of the disputants that are involved in the negotiation process. The primary goal of the initial phase of the transformative tactic is to empower the parties to approach the immediate and potential problems with a stronger spirit and a more open view. It ensures that those involved in the mediation process are receptive to different ideas generated during the dispute resolution process.

Narrative Approach to Mediation

The narrative approach was developed by Winslade & Monk (2000) as an alternative to the traditional methods of managing and mediating conflicts. According to Winslade & Monk (2000), conflict resolution mechanisms adopted by disputants are based on their stories about the conflict that they face. In addition, they disclose the nature of their relationship in these conflicts. Discourses and stories that are related to the conflicts and the relationships that exist between the disputants play essential roles in shaping the nature of the outcome of the mediation process. In the narrative model, disputants are granted with a safe environment in which they can share their stories concerning the conflicts and assess their individual relationships (Winslade & Monk, 2000). According to the narrations of the sides, the mediator breaks down the conflict into various components so as to uncover the underlying relationships between the conflict and the disputants.

The assumptions and biases that each party brings to the dispute are disclosed from the discourses shared in the safe environment created by the facilitator. Once these assumptions and biases are identified, the mediator then considers possible alternative approaches and new stories created about the dispute. The primary responsibility of the narrative approach is to transfer the disputing parties from the situation of seemingly intractable conflict to the situation of new stories. Thus, respect, understanding, and collaboration between the parties of dispute are fostered (Winslade & Monk, 2000). This method ensures that each of the parties in the dispute is involved in the discussion, especially during the third phase of the mediation process. Thus, the narrative approach differs from the problem-solving and transformative approaches given that all parties of the conflict, including the mediator, must be involved in joint discussion. In addition, the mediator’s and the disputants’ inputs are factored into the initial phase of the mediation process with particular regard to coming up with the agenda or the main concern.

Conclusion

Mediation is an essential conflict resolution tool which is useful for ensuring that there exist peaceful and mutually agreeable resolutions between different parties. Given the nature of the mediation process, various forms of mediation differ at each phase of the process given their unique characteristics and applications. It is evident that the transformative approach is the most effective negotiation approach as opposed to the facilitative and narrative approaches, since it mutually recognizes the disputants and ensures empowerment of the parties involve

Related Free Comparison Essays